Thursday, July 25, 2013

Recent scholarship

Elkind & Kauffman on Gay Talk: Protecting Free Speech for Public School Teachers

Stephen J. Elkind (NYU) and Peter Kauffman (NYU) have posted Gay Talk: Protecting Free Speech for Public School Teachers on SSRN. From the abstract:

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education context. Due to the harms restricting teachers’ speech about homosexuality can cause students, not to mention community members and the teachers themselves, this paper argues that when the Supreme Court revisits the question it left open in Garcetti, it should create an exception for both university professors and public school teachers. 

Hammer on In the Shadow of Gratz and Grutter: Grieving Diversity at the University of Michigan

Peter J. Hammer (Wayne State) has posted In the Shadow of Gratz and Grutter: Grieving Diversity at the University of Michigan on SSRN. From the abstract:

At the same time the affirmative action cases of Gratz and Grutter were winding their way to the Supreme Court, an internal grievance alleging discrimination and the failure to consider the value of diversity in the tenure process was being considered inside the University of Michigan Law School. This article explores the interconnected histories of Gratz, Grutter and the grievance, examining the internal difficulties and contradictions universities face in living up to their public commitments to fight discrimination and cultivate meaningful forms of diversity. The year following the Supreme Court decision, the University celebrated its accomplishments in 'Defending Diversity: Affirmative Action at the University of Michigan', co-authored by Patricia Gurin, the University’s lead expert witness on the effects of diversity in higher education and Jeffrey S. Lehman, Dean of the Law School through most of the litigation. In the internal grievance, Jeff Lehman advocated an interpretation of the Law School Grievance Policy that prohibited the grievance of any matter relating to tenure, including the crassest forms of discrimination or the failure of the faculty to consider the virtues of diversity. The Grievance Review Board, chaired by Patricia Gurin, adopted Dean Lehman’s position and categorically barred all grievances. Ironically, the hearing took place the very same day the University filed its response to plaintiff’s petition for writ of certiorari, where the University actively maintained that diversity in higher education constituted a compelling state interest. Meaningful progress on civil rights requires deep institutional change. It is often difficult to get even good people to do the right thing. The interconnected stories of Gratz, Grutter and the grievance – the same institution, with the same actors, at the same time the cases were being litigated – illustrate broader lessons about the challenges often preventing universities from making progressive change.

Waldman on Identity Aggression and Student Speech

Ari Ezra Waldman (New York) has posted All Those Like You: Identity Aggression and Student Speech (Missouri Law Review, forthcoming) on SSRN:

Online and face-to-face harassment in schools requires a coordinated response from the school, parents, students, and government. In this Article, I address a particular subset of online and face-to-face harassment, or identity-based harassment. Identity-based aggressors highlight a quality intrinsic to someone’s personhood and demean it, deprive it of value, and use it as a weapon. This Article argues that identity-based aggression need not be conflated with identity-affirming speech, both as a matter of its social effects and the First Amendment. Only a limiting liberal/libertarian approach to free speech would prevent schools from disciplining identity cyberbullies and face-to-face harassers and simultaneously force schools to silence speech that is necessary to make minorities full and equal players in education and in society as a whole. Implications of this theory are discussed.


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