Tuesday, November 24, 2015

Briggs v. Elliot and South Carolina's New Center for Civil Rights History

Yesterday, the University of South Carolina announced that it will establish a Center for Civil Rights History and Research to chronicle the contributions of the Palmetto State to the American civil rights movement.   It will be the first single entity dedicated to telling South Carolina’s civil rights story.  Congressman James Clyburn, the state’s first African-American member of Congress since Reconstruction and the assistant House Democratic leader, also announced that he will donate his congressional papers to the new center.  For education scholars, the center will be particularly important, as South Carolina holds an out-sized role in the history of desegregation.  Most obviously, Briggs v. Elliot was the deep-South companion case to Brown v. Board.  Clarendon County, where Briggs arose, still carries this history.  It has been the locus of the state's school funding litigation for the past two decades.   

As just a tease of what is to come from the center, I offer this picture of the original complaint in Briggs v. Elliot.  Having spent almost the entirety of my scholarly career on a computer and now being able to freely access historical materials in pdf. from the convenience of my office, seeing this complaint and the handwritten signatures on it was stirring.  Unfortunately, my picture can do no more than offer you easy electronic access, but I invite you all to visit the Center in the future as its work unfolds.  More here.


November 24, 2015 in Racial Integration and Diversity, Scholarship | Permalink | Comments (0)

Wednesday, November 18, 2015

Scholarship on the 2015 Term: Fisher II and Friedrich v. Calif. Teachers Association

Harpalani on Fisher v. University of Texas at Austin (Fisher II)

Prof. Vinay Harpalani (Savannah) has posted a policy issue brief on Fisher v. University of Texas at Austin (Fisher II) on SSRN. This term, the Supreme Court will decide in Fisher II whether UT’s admissions policy, which considers race in its admissions decisions, is sufficiently narrowly tailored to further the university’s interest in diversity. In his policy brief, American Constitution Society for Law and Policy Issue Brief: Defending the Constitutionality of Race-Conscious University Admissions  (October 29, 2015), Prof. Harpalani “offers proposals to universities, policymakers, and advocates who seek to defend the use of race-conscious admissions policies in the future.” His policy brief is excerpted below:

The basic constitutional question around race-conscious university admissions is relatively simple. Under the Equal Protection Clause of the Fourteenth Amendment, can a university consider an applicant’s race when making selective admissions decisions? For a university to use race as part of its admissions process, it must meet the strict scrutiny test. Its race-conscious admissions policy must fulfill a compelling state interest, and the policy must be narrowly tailored to meet that interest. Nevertheless, the nuances of strict scrutiny—as applied to race-conscious university admissions— have become quite complicated and contentious. Given the politically charged nature of race in America, universities, policymakers, and advocates need to understand constitutional doctrine and how it both intersects with and diverges from the political debates on affirmative action.

The Supreme Court heard some of the arguments on qualitative diversity in Fisher (I), but this time it will likely rule on them. The baseline issue here is the standard of review, and in accordance with its Grutter and Fisher (I) precedents, the Court should defer to UT on defining its diversity-related educational goals, such as the benefits of qualitative diversity. Such benefits are part of a university’s compelling interest in diversity: its educational goals and mission. In Fisher (I), Justice Kennedy’s majority opinion stated: “A court may give some deference to a university’s ‘judgment that such diversity is essential to its educational mission,’ provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision.” Qualitative diversity is on its face more than just racial balancing, as the whole point is to achieve diversity within racial groups rather than particular numbers or percentages of each racial group. Additionally, there are clear reasoned, principled explanations for seeking qualitative diversity, in terms of its educational benefits: it serves to break down racial stereotypes and to reduce racial isolation.

Hemel and Louk on Friedrichs v. California Teachers Association

Profs. Daniel Hemel (Chicago) and David Scott Louk (Yale) have posted Is Abood Irrelevant?, 82 University of Chicago Law Review Dialogue (Forthcoming) on SSRN about the Supreme Court's grant of certiorari this term to decide Friedrichs v. California Teachers Association, discussed on the blog here. Some believe that the Court granted certiorari in Friedrich to overrule or modify Abood v. Detroit Board of Education (1977), which held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” If Abood is overruled, that decision is expected to impact teachers' unions' financing and thus, the unions' political power. But Profs. Hemel and Louk's argue that Friedrichs may not make that much of an impact. Their abstract is excerpted below:

Many observers predict the Court may use Friedrichs as an opportunity to overrule Abood, with the consequence that public-sector unions will lose the ability to deter free-riding by nonmembers. We take no position on whether Abood will, or ought to, survive. Instead, we present a novel alternative mechanism to address the free-rider problem in public-sector workplaces — a mechanism that could be utilized even if Abood is overturned. We suggest that if a public-sector employer wants to make sure that a labor union is compensated for the cost of representing nonmembers, the employer can reimburse the union for those expenses directly. To offset the cost of this direct payment, the employer can reduce each employee’s salary by the employee’s pro rata share of the union’s bargaining expenses, while also freeing employees from the obligation to pay agency fees. This “direct payment alternative” would seem to accomplish the same objective as existing agency shop arrangements: it would prevent non-union members from reaping the benefits of union representation without sharing the costs. And while the wages of public-sector employees would be reduced by their pro rata share of their union’s bargaining costs, existing agency shop arrangements already reduce wages by that amount, because employees must pay their pro rata share in the form of union dues or agency fees.

In fact, our direct payment alternative might leave public-sector employers and employees better off than existing agency shop arrangements. First, the direct payment alternative eases the First Amendment concerns raised in Friedrichs: a direct payment to the union would likely qualify as “government speech,” and would thus be subject to less stringent scrutiny under present First Amendment doctrine. Second, the direct payment alternative would bring with it favorable federal tax consequences for state and local government employees. An employee’s pro rata share of union bargaining expenses would not be included in gross pay for purposes of Social Security and Medicare taxes, and would not be included in adjusted gross income for purposes of personal federal income taxes. Most public-sector employees would fare better on an after-tax basis if their employers adopted the direct payment alternative instead of the agency shop arrangement.

In this short essay, we compare and contrast the basic features of the agency shop and the direct payment alternative, considering the constitutional, economic, and political factors that might lead state and local governments and public-sector unions to choose one approach over the other. We present several hypotheses drawn from behavioral economics and political psychology — and, in particular, from the emerging literature on the “salience” of taxes and fees — that might explain why employers and unions have thus far opted for agency shops. We close by considering the practical consequences of a possible Supreme Court decision overruling Abood. We conclude that while Abood is not entirely irrelevant, the availability of the direct payment alternative suggests that the impact of overruling Abood may be muted.

November 18, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, November 11, 2015

James on Student Privacy and Smart Devices After Riley v. California

Professor Bernard James (Pepperdine)'s essay, T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California, 101 Iowa L. Rev. 343 (2015), is available here. The essay discusses how Riley v. California's cell phone privacy decision applies to school searches of the digital contents of students' smart devices. Excerpted from the essay:

Except in cases both rare and egregious, most student searches are upheld because “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and [courts] have respected the value of preserving the informality of the student-teacher relationship” [as the Supreme Court held in New Jersey v. T.L.O.]. Riley modifies T.L.O., stopping just short of requiring school officials to obtain warrants to justify searching students’ smart devices. The single most important element of this reconciliation is the “reasonable scope” limitation on school searches already built into the T.L.O. framework.


Riley’s primary effect on T.L.O. is to make more rigid the “reasonable scope” limitation on school discipline involving student cell phones and tablets. What emerges is an altered T.L.O., prohibiting searches of cell phones and smart devices unless the educator has the additional justification of reasonable suspicion of danger or reasonable suspicion of the student’s resort to the device as a hiding place for evidence of wrongdoing.


The guiding principle going forward is grounded in both logic and rule of law by carefully applying the decision of the Court from another higher- order privacy case—the strip search decision of Safford Unified School District #1 v. Redding. Hence, the expectation of privacy students possess in the digital contents of their cell phones after Riley is now at least equal to the higher- order privacy interest that prohibits strip searches by educators without additional justification. Despite this increased rigor, the most unanticipated consequence of Riley is the modest practical constraint on school disciplinary policies. When the fundamentals of school discipline and the educators’ duty to protect students are properly accounted for, the increase in student autonomy is not as much as one might imagine at the outset.

November 11, 2015 in Scholarship, Supreme Court | Permalink | Comments (0)

Monday, November 2, 2015

Scholarship: Engle on Mandatory Reporting of Campus Sexual Assault and Domestic Violence

Prof. Jill C. Engle (Penn State) has posted Mandatory Reporting of Campus Sexual Assault and Domestic Violence: Moving to a Victim-Centric Protocol that Comports with Federal Law on ssrn. Thanks to CrimProf Blog for the tip. Excerpted from the introduction:

Interest in getting campus reactions to [sexual assault] "right" is at an elevated level nationwide in the wake of certain high profile allegations of sexual violence at numerous colleges, including Columbia, Vanderbilt, Yale, Florida State, and the University of Virginia. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs. 


November 2, 2015 in Higher education, Scholarship | Permalink | Comments (0)

Wednesday, October 21, 2015

Scholarship On Student Privacy, Federal Education Tax, and School Desegregation

Student Privacy: The Next Frontier - Emerging & Future Privacy Issues in K-12 Learning Environments 

Paulina Haduong,  Zoe Emma Wood, Sandra Cortesi, Leah Plunkett, Dalia Topelson Ritvo, and Urs Gasser, Harvard University - Berkman Center for Internet & Society. Excerpted from the abstract:

Building off several prior working meetings which mapped and cthe Berkman Center for Internet & Society’s Student Privacy Initiative spoke with educators, policy makers, and industry representatives in May 2015 about the new and rapidly evolving ecosystem of networked technology being used with education (“ed tech”). In order to evaluate the challenges and opportunities fostered by the next generation of ed tech, participants were asked to consider four layers of the ed tech ecosystem: technological infrastructure, data, organizational structures, and norms and values.  Keeping these layers in mind, discussion ranged widely across numerous themes, reflecting the participants’ diverse backgrounds and perspectives. This report seeks to summarize the conversation’s main themes and highlight suggestions for future action. In the following section, the main themes and observations are considered, including issues dealt with explicitly and at length, in addition to those that more quietly (and perhaps implicitly) surfaced at multiple points during the day. And although the third section concerns suggested areas for moving forward, these are meant to be understood as key highlights, and not a comprehensive summary. Available at SSRN: http://ssrn.com/abstract=2638022.

Leveling the Playing Field: The Case for an Education Value Added Tax

Using Michigan's attempt to raise money through tax increases for Detroit's education system as a case study, Shera Avi-Yonah and Reuven S. Avi-Yonah (Michigan) conclude that states are unable to adequately to correct the imbalance in educational equality between inner-city and suburban school districts. The authors propose that

the only solution is a federal solution. As President Nixon proposed in 1972, the United States should adopt an “EducationValue Added Tax” (E-VAT) and use the revenues to equalize per student school funding across the country, as well as funding universal free public pre-K programs (such as the ones instituted by Mayor DeBlasio in NYC) and universal free public colleges for in-state residents (as used to be the case in California). This, we will argue, will do more to address the root causes of lack of equality of opportunity in America than any other potential use of revenues from a federal VAT. Available at SSRN: http://ssrn.com/abstract=2636728

Mendez v. Westminster: A Living History

Frederick P. Aguirre (Judge, Superior Court of Orange County, Kristi L. Bowman (Michigan), et al. - 

School desegregation is not just a "black and white" issue, and in fact it never has been. In 1931, a county court in Lemon Grove, California ordered a school district to stop segregating its white and Latino students. Fifteen years later in 1946, a court reached the same result in Mendez v. Westminster, becoming the first federal court to order the desegregation of schools. In this piece, Gonzalo Mendez and Sylvia Mendez (both now retired) recall their experiences as the children whose parents initiated the groundbreaking Mendez litigation, and the way in which their parents remembered the litigation. Sandra Robbie, who wrote and produced the Emmy-award winning documentary about the case, discusses its historical context. Frederick Aguirre, now a judge, reflects on the legal and personal significance of the decision. Philippa Strum, author of a book about the case, considers the unique challenges and rewards of writing about school desegregation cases. Kristi Bowman facilitates these various reflections and weaves them together. Available at SSRN: http://ssrn.com/abstract=2629146

October 21, 2015 in Scholarship | Permalink | Comments (0)

Thursday, October 15, 2015

Tuerkheimer on Rape On and Off Campus

Deborah Tuerkheimer (Northwestern) has  published Rape on and Off Campus, 65 Emory L.J. 1 (2015). The article argues that the criminal justice system’s treatment of non stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. The abstract is below:      

The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. Unnoticed, however, is a profound disconnect between cultural norms around sex and the legal definition of rape. The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape — that is, non- stranger rape — to a place beyond law’s reach. Of special concern, the dominant statutory approach misconceives or overlooks entirely the role of consent, which has become central to popular and political discourses around sexual assault. In the midst of increasing moves on campus to codify affirmative consent standards (“yes means yes”), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law’s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent’s meaning. In stark contrast, the criminal justice system’s treatment of non- stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.

October 15, 2015 in Scholarship | Permalink | Comments (0)

Thursday, October 1, 2015

Detroit Mercy Law Review Call for Papers

Detroit Mercy is hosting a symposium issues focusing on the past and present challenges in Detroit. Among those is obviously education.  The full announcement is after the jump.

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October 1, 2015 in Scholarship | Permalink | Comments (0)

Friday, September 4, 2015

Recent Scholarship on States' Education Obligations

Mead on voucher programs and state constitutional guarantees

Julie F. Mead (Wisconsin-Madison) explores when does a state's funding of private education voucher programs subvert its constitutional obligations to provide adequately for public education in The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 Fordham Urb. L.J. 703, 704-05 (2015). An excerpt follows:

… The introduction of publicly funded private school choice provisions calls into question what is “public” about “public education.” Distinctions that once were clear--public school versus private school--become blurred. For example, Tony Evers, Wisconsin Superintendent of Public Education, noted that the average private school participating in the Milwaukee Parental Choice Program (MPCP) enrolls more than eighty percent of its students by means of a publicly funded voucher and posed the following question: “If only one in five students enrolled in a choice school pays tuition, then when do choice schools stop being private schools and become something else?” These same statistics prompted the American Civil Liberties Union and Disability Rights Wisconsin to characterize the MPCP participating schools as “private in name only.”

    Whether voucher programs alter the nature of the participating schools from private school to some quasi-public or quasi-private form of school is a provocative question. However, the more important question is what such programs mean for a child's right to an education. State constitutions uniformly make some provision of public education, sketching the contours of that right and directing state legislatures to provide it. As such, the question becomes whether a state's subsidy of private education compromises that state's ability to fulfill its obligation to establish and fund public schools consistent with each state's constitutional mandates. 

Queenan on amending the IDEA to require school districts to consider broader factors for extended school year services

Rosemary Queenan (Albany) discusses the states' criteria for determining whether a disabled student is in need of special education services during the summer in School's Out for Summer-but Should It Be?, 44 J.L. & Educ. 165, 167 (2015). Excerpted from the article: 

States are required to consider the need for extended school year services (ESY services) during the summer months, if necessary, to comply with the Individuals with Disabilities Education Act’s (IDEA) requirement to provide school-age children with disabilities a free appropriate public education. However, the federal regulations do not identify specific factors for determining a child's need for ESY, instead authorizing the states to determine the eligibility standard. As such, the states have established and developed their own criteria for determining whether a disabled student is in need of special education services during the summer. However, questions remain as to the most appropriate factors to be evaluated in assessing eligibility for ESY services, and whether such an assessment should be made based on one factor alone or a variety of factors.

    [This article] provides a comparative analysis of the various factors applied by the local education agencies to determine eligibility to receive ESY services. Based on this comparative analysis, [the article] makes the case that the analysis of whether a child with a disability is eligible for ESY services should be based on a multi-factored analysis, and recommends that the IDEA regulations be amended to require or recommend local school districts to consider multiple factors, including the nature of a child's disability, the rate of progress over the course of the school year, and whether critical skills are emerging.

September 4, 2015 in Scholarship | Permalink | Comments (0)

Tuesday, June 16, 2015

Recent Scholarship on State Voucher Programs, Title IX, and the School-to-Prison Pipeline

Recent scholarship posted on ssrn includes papers on the DOJ's demand that Wisconsin intervene in the treatment of special needs students who use vouchers to attend private schools; the Title IX implications of the the O'Bannon and Northwestern college athletics cases; and the school-to-prison pipeline crisis for Montana's Native American students.

Wendy Fritzen (Georgia State), The Limits of Federal Disability Law: State Educational Voucher Programs, Journal of Law & Education (2015)

The U.S. Department of Justice is currently investigating the state of Wisconsin with respect to its administration of the Milwaukee Parental Choice Program (MPCP), which provides low-income students with public money to attend private schools. Faced with complaints of disability discrimination by private schools accepting voucher students, DOJ has ordered Wisconsin to oversee and police these schools to ensure compliance with Title II of the Americans with Disabilities Act, which applies to states and their agencies, and § 504 of the Rehabilitation Act, which applies to recipients of federal funding. Although conditioning its directive on the state's coverage under these statutes, DOJ in an unprecedented move also strongly hinted that participating schools may themselves be subject to Title II by accepting voucher students. If correct, this contradicts existing agency precedent, has significant implications for states administering voucher programs, and may impose burdens on private schools far beyond Wisconsin's borders. This article evaluates the legal authority for DOJ's directives to Wisconsin and explores the broader question of whether Title II and § 504 obligations attach to the actions of private schools participating in voucher programs.

Melina Angelos Healey (Loyola Chicago), Montana's Rural Version of the School-to-Prison Pipeline: School Discipline and Tragedy on American Indian Reservations, 75 Mont. L. Rev. 15 (Winter 2014)

American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems.  The tragic situation of these children on remote reservations in the Northeast corner of Montana has received far too little attention. This article presents relevant regional data, heretofore largely unexamined, and provides some personal narratives that demonstrate the shocking educational inequities American Indian children suffer in Montana. It also makes recommendations for addressing the problem.

Erin Buzuvis (Western New England), Athletic Compensation for Women Too? Title IX Implications of Northwestern and O'Bannon, Journal of College and University Law

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive. As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and, second, that athletes are being exploited by the present system. Ultimately, the Author reframes the application of Title IX to athlete compensation by proposing two alternative outcomes: either college athletics departments could reform their programs by curtailing the ways in which they have become overly commercialized programs and thus avoid the application of antitrust and labor laws, or they could reform themselves by abandoning their connection to education and the subsidy that comes with it.

June 16, 2015 in Scholarship | Permalink | Comments (0)

Monday, May 11, 2015

Recent Scholarship

Below are a few education law articles recently posted on SSRN on teacher tenure, discriminatory state college tuition for undocumented students, public employee speech, and the constitutional standard of review for single-sex schools.

Herman Daniel Hofman, 'Exceedingly [Un]Persuasive' and Unjustified: The Intermediate Scrutiny Standard and Single-Sex Education after United States v. Virginia, Michigan State L.Rev., forthcoming: Although single-sex public schools in the United States were virtually non-existent in the 1980s, the popularity of public single-sex elementary and secondary schools has increased dramatically in the past fifteen years. This increase occurred as a result of a variety of factors, including the deficiencies of coeducational school settings, increasing research showing the benefits of single-sex education, and support by federal law under the No Child Left Behind Act and Department of Education regulations. However, schools attempting to use the educational benefits of single-sex education to provide individualized instruction to their students continue to face the threat of litigation for their well-intentioned efforts. ... The reason for this situation is simple ― Supreme Court cases analyzing the constitutionality of sex class isolations have applied conflicting standards of review. The Supreme Court’s application of the intermediate scrutiny standard has ranged from applying a more demanding intermediate scrutiny standard in some cases to adopting a more relaxed intermediate scrutiny standard in others. ... In order to remedy this problem, the Supreme Court must reaffirm its commitment to the “traditional” intermediate scrutiny standard of review for analyzing single-sex educational programs. As such, in reviewing single-sex educational programs or schools, the Supreme Court should simply analyze (1) whether the state furthers an “important governmental objective” in establishing the school or program; and (2) whether the state’s means are “substantially related to achievement” of this objective. In so doing, the Supreme Court would reconcile its conflicting standards of review with the increasing acceptance of single-sex education programs in popular opinion, federal law, and lower federal courts.

Laura R. McNeal (Brandeis), Total Recall: The Rise and Fall of Teacher Tenure, Hofstra Labor and Employment Law Journal, Vol. 30, 2012-2013: This article will examine the evolution of tenure in K-12 public schools and explore new pathways of protecting teachers from unfair labor practices while advancing education reform. In this article, I argue that the Reauthorization of the Elementary and Secondary Education Act should include an increased federal role in teacher quality through the creation of a uniform teacher evaluation system. Additionally, I will propose a collaborative framework for teachers and school districts that will maintain teacher rights while employing an evaluation system that affords school districts a means for removing ineffective teachers, regardless of their seniority. The larger ambition of this article is to help illustrate that we can create laws that achieve education equity without unfairly targeting or infringing on teachers' employment rights. Part I will explore the evolution of teacher tenure in K-12 schools and the impact on teachers' employment rights. Part II will examine the intersection of school reform and teacher tenure, with a particular emphasis on how reform measures have contributed to the erosion of teacher tenure. Part III will highlight the recent wave of antitenure legislation and discuss the implications for teacher rights in K-12 schools. Part IV will synthesize the current labor law landscape for teachers and argue that the Reauthorization of the Elementary and Secondary Education Act should include procedural safeguards such as a uniform teacher evaluation system to ensure that teacher's employment rights are not violated. Part V will conclude with discussion of the future of teacher tenure in K-12 public schools and the implications for school reform.

David H.K.Nguyen and Zelideh R. Martinez Hoy, 'Jim Crowing' Plyler v. Doe: The Resegregation of Undocumented Students in American Higher Education Through Discriminatory State Tuition and Fee Legislation, Cleveland State Law Review, Vol. 63, No. 2, 201:. This law review article examines the re-segregation of undocumented students in education, more specifically, re-segregation through state laws and policies impacting their attendance at American colleges and universities. Under no fault of their own, undocumented students are marginalized even further after graduating from high school, since they are not afforded the same benefits as their peers to attend college. This article explores the current landscape of these laws and policies after providing background on Plyler v. Doe and state and federal attempts to challenge education for undocumented students.

Michael Toth (Stanford), Out of Balance: Wrong Turns in Public Employee Speech Law, University of Massachusetts Law Review, Vol. 10, No. 2, Forthcoming. From the abstract: Although scholars offer a variety of explanations for the modern Supreme Court’s public employee speech jurisprudence, they share a common presumption. According to the standard account, this article tells the story of how the unconstitutional conditions doctrine, unbeknownst to courts and commentators fixated on Pickering balancing, has been the true driving force behind a major area of First Amendment law for nearly fifty years.[T]he modern era of public employee free speech law began in 1968, with the Court’s adoption of a balancing test in Pickering v. Board of Education. [T]his article argues that Pickering balancing is better characterized as a relic from a bygone era rather than the start of a new one. Balancing was once the Court’s standard method of judging First Amendment claims. When Pickering was decided, however, balancing was under attack. Consistent with the overall demise of free speech balancing, this article shows that the Court began abandoning Pickering balancing the moment the standard was announced. Pickering itself was not decided on balancing grounds, and the public employee speech cases that followed it in the Supreme Court have avoided balancing. When Pickering is put into proper perspective, it is possible to identify an overlooked explanation for the modern Court’s public employee speech rulings. This article tells the story of how the unconstitutional conditions doctrine, unbeknownst to courts and commentators fixated on Pickering balancing, has been the true driving force behind a major area of First Amendment law for nearly fifty years.

May 11, 2015 in Scholarship | Permalink | Comments (0)

Friday, May 1, 2015

Arkansas Law Review Symposium Issue - Education: The New Civil Right

The Arkansas Law Review's education symposium issue with articles discussing the theme “Education: The New Civil Right,” 68 Ark. L. Rev. 83, 100 (2015), is now available on Westlaw and Lexis. Excerpted from the symposium issue’s introduction:

Peter C. Alexander, Seeking Educational Equality in the North: The Integration of the Hillburn School System, describes his family's effort, alongside then-attorney Thurgood Marshall and the National Association for the Advancement of Colored People, to integrate a school system in the North before Brown.

Jose' Felipe' Anderson urges the federal courts to get more involved in ensuring educational equity through the equal protection clause in "Law Is Coercion": Revisiting Judicial Power to Provide Equality in Public Education.

Linda Sheryl Greene, The Battle for Brown, proposes that full citizenship includes the constitutional right to education.

Regina Ramsey James, How to Fulfill a Broken Promise: Revisiting and Reaffirming the Importance of Desegregated Equal Educational Access and Opportunity, contends that the Supreme Court must recognize education as a fundamental right in order to force states to provide equal educational access to minority children.

Bethany J. Peak, Militarization of School Police: One Route on the School-to-Prison Pipeline, analyzes the connection between school militarization and the school-to-prison pipeline. Peak compares the structure and duties of school police and describes the twenty-six school districts across the country that have acquired military equipment through the Department of Defense's 1033 Program. She concludes schools become militarized in three ways: (1) through the placement of permanent police officers in schools; (2) through the acquisition of military-grade weaponry by school police departments; and (3) through the performance of unannounced drills at schools using actual weapons.

Ellen Marrus, Education in Black America: Is It the New Jim Crow?, discusses the limited opportunities for African American youth educated from the foster care system, juvenile or adult locked prison institutions, or caught in the net of juvenile justice programs.

Janel A. George, Stereotype and School Pushout: Race, Gender, and Discipline Disparities, discussing how race and gender bias uniquely impact and undermine the educational experiences and outcomes of African American girls.

Tracie R. Porter, The School-to-Prison Pipeline: The Business Side of Incarcerating, Not Educating, Students in Public Schools, examines the incarceration of youth, discussing how the private prison industry and government organizations benefit and their disinterest in educating youth in public schools. 

May 1, 2015 in Scholarship | Permalink | Comments (0)

Monday, April 27, 2015

The Child's Interest to Be Free From Homeschooling

Two years, ago Josh Powell caught national media attention with his attempts to enroll in Buckingham County Public Schools.  He had been homeschooled for years and, under the permissive homeschool rules in the state, had managed to learn relatively little.  The things he claimed to not know and the learning experiences he claimed to not have had were shocking.  
His story also struck a chord with a Georgetown law student, who reached out to him to learn more of his story.  That law student,  Carmen Green, has now published a thorough analysis of home school statutes from the prospect of the student and proposes solutions for students like Josh Powell.  See Educational Empowerment: A Child's Right to Attend Public School, 103 Geo. L.J. 1089, 1094 (2015).  Her roadmap of the article is as follows:

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April 27, 2015 in Scholarship | Permalink | Comments (0)

Thursday, April 9, 2015

New Book on Education Policy: Race to the Bottom: Corporate Reform and the Future of Public Education

The Washington Post has a summary of a new book, Race to the Bottom: Corporate Reform and the Future of Public Education (Apr. 2015) by Michael V. McGill, professor of school leadership at Bank Street College of Education and former superintendent of the Scarsdale, NY schools. In his summary, McGill challenges the modern school reform movement's "silver bullet strategies" that have produced only modest gains in raising standardized test scores and closing achievement gaps. These efforts, he argues, have only succeeded in creating a divisive environment that has undermined the quality of education. Among some concrete suggestions for invigorating educators and school districts, Professor McGill proposes three broad areas of change for education policy:

  1. recognizing that a strategy of audit and control cannot produce the results of the same quality that human development can, let alone liberate the talent necessary to create an education for the 21st century;
  2. offset economic disparities and racial discrimination through adequate education funding; and
  3. re-engaging the partners in the education enterprise—governments, localities, universities, the research community—in relationships that are both authentic and reciprocal, so that the parties respect and draw on each other’s wisdom and energy.

Read Professor McGill's summary of Race to the Bottom here.

April 9, 2015 in News, Scholarship | Permalink | Comments (0)

Friday, March 20, 2015

Nance on Student, Police, and the School-to-Prison Pipeline

Professor Jason P. Nance (Florida) has posted Student, Police, and the School-to-Prison Pipeline, Washington University Law Review, forthcoming, on SSRN here. In his article, Nance empirically reinforces informal observations about the growing use of police in schools: that more children are ending up in the criminal justice system for infractions that would have been resolved previously without police officers. Lawmakers. parents, and school boards pressed for laws to increase the presence of police officers to protect students from mass gun violence, such as the attacks in Columbine and Sandy Hook. But laws intended to protect students from gun violence and external threats has resulted in law enforcement being overused as a first response to internal rule breaking. Nance argues that "not enough attention has been given to the potential negative consequences that these new laws may have on students and the school-to-prison pipeline." Below is an excerpt from Student, Police, and the School-to-Prison Pipeline:

Drawing on recent restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically-sound methods. ... The empirical analysis reveals that, even after controlling for (1) state statutes that require schools to report certain incidents to law enforcement, (2) general levels of criminal activity and disorder that occur at the school, (3) neighborhood crime, and (4) other demographic variables, a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including seemingly minor offenses. This finding has serious implications as lawmakers and school officials continue to deliberate over whether to use their limited resources to hire more law enforcement officers to patrol school grounds.

[T]his Article urges lawmakers and school officials to use their resources to adopt alternative measures to promote school safety instead of resorting to measures that rely on coercion, punishment, and fear. This is especially important when such measures tend to push students out of school and into the juvenile justice system, which can have such devastating, long-lasting consequences on the lives of students. A growing body of research suggests that programs that promote a strong sense of community and collective responsibility enhance school safety much more effectively than police officers and other strict security measures without degrading the learning environment. And while these alternative measures may not prevent a determined, deranged individual from harming members of the school community, the rarity of these events cannot justify the enormous amount of resources that would be needed to protect students at all times and in all places while they are at school. Indeed, in the wake of highly-publicized acts of school violence, the public often forgets that schools remain among the safest places for children.

March 20, 2015 in Scholarship | Permalink | Comments (0)

Tuesday, March 17, 2015

Scholarship: Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws

Professr Emily Suski (Georgia State) has posted Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws, published in the Case Western Reserve Law Review. Excerpted from the abstract: For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. While some surveillance authority over students may be warranted, the majority of the cyberbullying laws implicitly give schools unlimited, or nearly unlimited, and unfettered surveillance authority over students' online and electronic activity whenever, wherever, and however it occurs: at home, in bedrooms, at the mall, on personal cell phones, on tablets, or on laptops. ... To protect students from excessive school surveillance authority and attendant privacy harms, realistic limits need to be imposed on school surveillance authority under the cyberbullying laws both by way of a framework for determining the boundaries of school authority and a cause of action for students. This Article calls for both and draws on the nexus doctrine in First Amendment student-speech cases to develop such a framework. Prof. Suski's article is available on SSRN: http://ssrn.com/abstract=2573390.

March 17, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, December 3, 2014

Mississippi Law Journal Symposium on Education Law

The Mississippi Law Journal's symposium edition focusing on education law is now available at 83 Miss. L.J. 671 (2014). Although the symposium edition covers a range of national education issues, it comes at an important time in Mississippi, as the state faces an education funding lawsuit and as its governor and lieutenant governor square off this week against state education officials over scrapping the Common Core standards that the state adopted in 2010. The introduction by Prof. Kerry Brian Melear (Mississippi) and Mary Ann Connell summarizes the symposium's articles:

Scott Bauries explores the contests surrounding academic freedom and how the concept relates to individual faculty concerns. He notes that the United States Supreme Court has not recognized a unique right to individual faculty academic freedom, and argues that to do so would frustrate the First Amendment.
Robert O'Neil visits First Amendment jurisprudence across a range of issues through the lens of historical treatment, deftly surveying disputes involving hate speech, offensive utterings, and their judicial outcomes over time.
Laura Rothstein focuses on the foundations and current status of disability law as it relates to students across the educational spectrum, from K-12 through higher education. 
Martha McCarthy directs her inquiry toward cyber-bullying and its impact on students in K-12 schools. Her article underscores that troublesome grey areas exist in the realm of student free expression rights, and that the ambiguity is further complicated by technology and the ease with which students can now bully and harass each other remotely--but still painfully. A key issue explored in this context is the role of speech made off campus via technology and how that informs new questions regarding student expression both on and off campus.
Barbara Lee turns her attention to student conflicts and discipline in the higher education setting, specifically addressing student-professor academic disputes on the college campus and the litigation that has recently resulted. She explores the fiduciary theory of the relationship between college and student, which requires a greater standard of conduct than that of good faith and fair dealing typically required in a contractual argument, and  offers sound strategies to avoid litigation and insulate institutions of higher learning from liability.
Through empirical and legal analysis, Perry Zirkel's article examines student discipline on the private college campus, noting that students at private institutions are not veiled by constitutional protections, a stark distinction between such students and their counterparts at public institutions in the context of disciplinary decisions. He concludes that previous characterizations of private college student discipline merit reexamination.
Casey McKay (University of Mississippi law student) provides a note on Fisher v. University of Texas. 
Claire Stamm (University of Mississippi law student) on recent Mississippi K-12 legislation designed to end social promotion.

December 3, 2014 in Scholarship | Permalink | Comments (0)

Wednesday, November 5, 2014

Scholarship: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts

The paper that received the George Jay Joseph Education Law Writing Award from the Education Law Association is available now on Lexis: Matthew Saleh, Public Policy, Parol Evidence and Contractual Equity Principles in Individualized Education Programs: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts, 43 J.L. & Educ. 367 (2014). The Joseph award recognizes excellence in education law scholarship by law students or graduate students of education. Cribbed from the paper's introduction:

Under the Individuals with Disabilities Education Act, school districts are required by law to create Individualized Education Programs (IEPs) for qualifying students to help ensure these students receive a Free and Appropriate Public Education (FAPE). This paper makes the argument that courts should derive parties’ intended agreement from the text contained within the "four corners" of the written IEP and not from extrinsic evidence. Many districts and even state education departments openly favor vague litigable terminologies in IEPs, and most parents simply lack the sophistication to understand the legal problems they are creating for themselves down the line. Using the four corners rule to interpret IEPs would not be altogether different than the tack taken by courts towards construing boilerplate language in other types of contracts where: (a) one party has expertise in the technical language used; (b) the other party is unsophisticated as to the "obscure verbiage" utilized in the instrument; (c) the more sophisticated party played a disproportionate role in drafting the instrument; and (d) the court determines that the boilerplate terminologies do not adequately represent the "intent" of the less sophisticated party to the instrument. The applicability of such rules of interpretation to the IEP context, in conjunction with the four corners rule, would have a positive influence on the effectiveness of the IEP as a proactive means for agreeing to educational services without having to resort to costly, adversarial, and inefficient dispute resolution procedures.

November 5, 2014 in Scholarship, Special Education | Permalink | Comments (0)

Tuesday, October 7, 2014

New Legal Scholarship: The Business of Charter Schools, NCLB Waivers, Expanding Vouchers, and Transgendered Student Legislation

The new issue of BYU's Education and Law Journal is out and includes the following articles:

Patrick J. Gallo, Jr., Reforming the "Business" of Charter Schools in Pennsylvania, 2014 B.Y.U. Educ. & L.J. 207 (2014).

        Gallo addresses the current state of the charter school system in Pennsylvania and the need for reform. Summarizing some of the serious issues facing the charter ​system in Pennsylvania, the author states:

    There are now more than 175 charter schools in Pennsylvania with over 105,000 students and     approximately 44,000 more students on waiting lists. In addition, roughly 25 percent of the student     population in the Philadelphia School District attend public charter schools. Moreover, government     financed charter schools present a significant opportunity for profiteers looking to cash in on this modern     day "gold rush," and, with very little oversight, Pennsylvania public charter schools have become fraught     with "chicanery and greed . . . [,] excessive executive salaries . . . [,] nepotism, and [dubious] financial and     real-estate transactions. 

Continue reading

October 7, 2014 in Charters and Vouchers, ESEA/NCLB, Gender, Scholarship | Permalink | Comments (0)

Monday, September 15, 2014

Call for Papers: Richmond Journal of Law and the Public Interest

The editors of the journal shared the following with me and a particular interest in education:

The Richmond Journal of Law & the Public Interest is seeking submissions for our 2014-2015 volume.  We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.

Continue reading

September 15, 2014 in Scholarship | Permalink | Comments (0)

Thursday, September 11, 2014

Derek Black on Federalizing Education By Waiver?

Although Education Law Prof Blog editor Derek Black (South Carolina) has referred to his scholarship in discussing the ED's "big waiver" policies, I don't think that we have posted his new paper, Federalizing Education by Waiver? (forthcoming Vanderbilt Law Review). In the paper, Prof. Black examines how NCLB waiver policies exceed Secretary Duncan's constitutional and statutory authority. The abstract is below, and the paper may be downloaded from SSRN here

In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the control of the federal government.
This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary’s statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states’ inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.

September 11, 2014 in Scholarship | Permalink | Comments (0)