ARTICLES, NOTES AND COMMENTARY Primary & Secondary Education Articles
Austin W. Brumwell, Recent Development: Juris Doctores or Doctores Divinitatis: Good News Club v. Milford Central School, 25 Harv. J.L. & Pub. Pol'y 385 (2001). In the context of religious education in schools, the Supreme Court has struggled to define and delineate between speech that discriminates in its viewpoint and speech that discriminates in its content. The author of this article determines that the Court must first define "religion" itself before it can restrain schools from teaching the "content" of religion. Some references to religion are for purposes other than religious content teaching, and therefore are not violative of the Establishment Clause. Dennis Ford Eagan, The Past, Present, And Future of School Desegregation Law in Massachusetts, 34 Suffolk U. L. Rev. 541 (2001). This note examines the creation and evolution of public school desegregation in Massachusetts through analysis of the history of desegregation and the racial imbalance statute in Massachusetts compared to the history of national desegregation law. The recent trend by the federal courts to overturn race-based school policies is also examined. The author contends that school desegregation and racial balancing play an important role in Massachusetts public schools and must withstand recent challenges. William G. Frey & Virginia Lynn Hogben, Vouchers, Tuition Tax Credits, and Scholarship-Donation tax Credits: A Constitutional and Practical Analysis, 31 Stetson L. Rev. 165 (2002). Recently, some courts have approved vouchers for private schools as long as the vouchers are distributed equally, without preference to religion. The authors of this note believe that because courts are setting precedents that private and public school students may recieve the same benefits through vouchers, private schools should no longer deserve more beneficial tax breaks than public schools. If the schools are to be treated equally in the eyes of the government, the authors assert, private schools should no longer succeed in the argument that they deserve higher tax breaks from the government.
Stephen E. Gottlieb, Brown v. Board of Education and the Application of American Tradition to Racial Division, 34 Suffolk U. L. Rev. 281 (2001). The author discusses the overarching American tradition of pluralism and integration and how Brown reflected this fundamental American ideology. Gary Richard Hattal and Cynthia Morrow Hattal, Battling School Violence with Mediation Technology, 2 Pepp. Disp. Resol. L.J. 357 (2002). An analysis of the causes and trends in the recent increase in school violence. Psychological and sociological factors and explanations are discussed. The authors suggest the use of mediation, including Technology Assisted Group Solutions (TAGS), as a new angle to solve these problems. Julie Jones, Money, Sex, and the Religious Right: A Constitutional Analysis of Federally Funded Abstinence-Only-Until-Marriage Sexuality Education, 35 Creighton L. Rev. 1075 (2002). This author contends that section 510 of the Social Security Act severely limits the availability of information regarding sexuality to the nation's youth to information that does not conflict with conservative Christian values. To this extent, the author concludes that the section is inconsistent with the Establishment Clause and thus impermissible.
Allen Lanstra, Jr., Does Judicial Selection Method Affect Volatility? A Comparative Study of Precedent Adherence in Elected State Supreme Courts and Appointed State Supreme Courts, 31 Sw. U. L. Rev. 305 (2002). The author of this article statistically analyzes state Supreme Court decisions to determine that there is little, if any, difference in the volatility of judges' decisions in appointed courts as compared to judges' decisions in elected courts.
Jennifer Mueller, Facing the Unhappy Day: Three Aspects of the High Stakes Testing Movement, 11-WTR Kan. J.L. & Pub. Poly 201 (2002). The author of this article statistically and legally analyzes "high stakes testing issue." Three case studies of different academic assessment tests are discussed to determine their effectiveness. The author concludes that these tests are great tools for diagnosing problems, directing interventions, and public reporting, but that the tests should be a means to discover problems, rather than a solution to problems.
Kay Hennessy Seven & Perry A. Zirkel, In the Matter of Arons: Construction of IDEA's Lay Advocate Provision Too Narrow? 9 Geo. J. on Pov. 193 (2002). In Delaware, the supreme court found that advocates representing parents of disabled children at due process hearings were engaging in the unauthorized practice of law. The court interpreted (sec)1415(h)(1) of IDEA as not permitting lay advocates to represent parents in these types of proceedings, despite the interpretation by the Department of Education allowing such representation. These authors find that the courts should allow non-attorney representation of parents at the due process level, although not at the court level, in the interests of justice because there are few if any attorneys in this field available in many locales.
Notes & Comments
Comment, Revisiting Article I, Section 5 of the Oregon Constitution: the Application of Priest v. Pearce and an Evaluation of the Oregon School Tax Credit, 38 Willamette L. Rev. 427 (2002). The purpose of this Comment is to determine whether the Oregon School Tax Credit (OSTC), if enacted as a statute, would violate Article 1, Section 5 of the Oregon Constitution. It sets forth the necessity for educational tax credit legislation, evaluates the Oregon Supreme Court's interpretations of the religious clauses of the Oregon Bill of Rights, discusses the plain meaning of Article 1, Section 5 of the Oregon Constitution, attempts to determine the framers' intent behind Article 1, Section 5, and recommends a proper constitutional analysis of the OSTC.
Note, Child Care & PRWORA: Paying the Babysitter or Investing in Early Education?, 9 Geo. J. On Poverty L. & Poly 249 (2002). The author of this note examines the child care provisions of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). She analyzes child care programs in three states, focusing on fund allocation, the policy objectives, and the success of the programs' implementation of the goals of the child care policy of PRWORA. Further, the author urges policy makers to focus their attention on enhanced quality, the third goal of the child care policy, to accomplish the ultimate purpose: to lift children out of a cycle of poverty.
Note, The Crack in Justice Scalia's Crystal Ball: Single-Sex Charter Schools May Prove His Prediction in VMI Was Wrong, 8 Wm. & Mary J. Women & L. 133 (2001). This note analyzes the equal protection strictures applied to single-sex charter schools by examining features, characteristics, and enabling legislation of charter schools. It discusses proponents' and detractors' arguments about single-sex education, addresses the state actor status of charter schools, and analyzes the significant case law regarding single-sex public education under the Equal
Note, Does the Missouri Safe Schools Act Pass the Test? Expelling Disruptive Students to Keep Missouri's Schools Safe, 67 Mo. L. Rev. 123 (2002). In Hamrick v. Affton School District Board of Education, the Missouri Court of Appeals from the Eastern District of Missouri narrowly interpreted the Missouri Safe Schools Act to require public schools to admit for enrollment a student who had been expelled from a non-public school. The Missouri General Assembly later changed the dispositive language making it clear that public school districts can deny enrollment to students suspended or expelled from both public and nonpublic schools. This law summary discusses whether the statutory change furthers the goal of the Missouri Safe Schools Act and whether legislation is a sufficient mechanism for effectuating safety in Missouri schools.
Note, Drug Testing and the Confused Athlete: A Look at the Differing Athletic Testing Programs in High School, College and the Olympics, 3 Fl. Coastal L.J. 91 (2001). As the use of illegal drugs has become more prevalent with a wide range of athletes from high school athletic programs to the Olympics, athletic organizations have implemented various drug testing methods for participants. This note discusses the variances in the administration and policies among these varying athletic programs. The author further notes that, regardless of the reasons, courts generally allow drug testing in athletic programs, because the interests in preventing drug use in athletes is superior to the athletes' privacy interests.
Note, Equal Opportunity, Individual Liberty, and Meritocracy in Education: Reinforcing Structures of Privilege and Inequality, 9 Geo. J. on Poverty L. & Pol'y 227 (2002). The author proposes that a voucher program supported by the notion of "equal opportunity" actually legitimates the pervasiveness of social inequality in the school program. The note suggests that schools should focus on the fact that there are students from different degrees of privilege and that those issues must be addressed without superficially covering the reality of inequality by providing vouchers.
Note, Is "Adequacy" a More "Political Question" than "Equality?": The Effect of Standards-Based Education on Judicial Standards for Education Finance, 11 Cornell J.L. & Pub. Poly 403 (2002). This note tracks the change in education finance litigation from claims based on the inequality of education funding between rich and poor districts to claims based on the right to adequate schooling under state constitutions. Note, The Long Shadow of the Confederacy in America's Schools: StateSponsored Use of Confederate Symbols in the Wake of Brown v. Board, 10 Wm. & Mary Bill Rts. J. 525 (2002). A critical history of proliferation of confederate symbolism in the last 50 years and an argument for its unconstitutionality.
Note, Posting the Ten Commandments as a Historical Doctrine in Public Schools, 87 Iowa L. Rev. 1023 (2002). The author discusses recent freedom of religion cases involving school prayer and the display of a religious cr&he. The author asserts that posting the Ten Commandments purely for historical purposes would also violate the Constitution because, as a purely religious document, the posting suggests that Christianity is fundamental to U.S. history.
Casenote, Constitutional Law: Establishment Clause v. Free Expression: Adler v. Duval County School Board, 54 Okla. L. Rev. 775 (2001). In Adler, the Eleventh Circuit allowed a school system to continue its policy permitting a graduating student, elected by his or her class, to deliver an unrestricted message of choice at the beginning or closing of graduation ceremonies. This article finds that after the Adler decision, students' right to speech free from content or viewpoint discrimination continues.
Casenote, First Amendment- Freedom of Speech- A Public Elementary School's Exclusion of a Christian Organization from Meeting on School Grounds Because of the Organization's Religious Perspective is Unconstitutional Viewpoint Discrimination-Good News Club v. Milford Central School, 121 S. Ct. 2093, 12 Seton Hall Const. L.J. 333 (2000). Despite the recent decision in Good News Club v. Milford Central School, several questions remain unresolved concerning the requirement of viewpoint neutrality in Free Speech jurisprudence. The procedural posture of the case as it came to the court required the majority to base its decisions on assumptions and unclear facts. Because this situation makes the Court's stance difficult to discern, the decision's precedental value is inevitably weakened.
Casenote, Let Us Pray?: The Constitutionality of Student-Led Graduation Prayer After Santa Fe v. Doe, 2002 U. Ill. L. Rev. 149 (2002). The author summarizes the Supreme Court's stand on prayer in public schools, concluding that the decision in Santa Fe strikes the appropriate balance between opposing interests.
Casenote, Misreading the Recipe: How the Court in Santa Fe Independent School District v. Doe Failed to Appreciate the "Ingredients" of Equal Access and Student Choice in a Policy Providing for After-School Religious Speech, 31 Stetson L. Rev. 219 (2002). The author critiques the Supreme Court's decision in Santa Fe v. Doe, concluding that the court erroneously held that the school district's policy allowing pre-game "invocations or messages" violated the Establishment Clause.
Casenote, New York's Education Finance Litigation and the Title VI Wave: An Analysis of Campaign for Fiscal Equity v. State, 10 J.L. & Pol'y 271 (2001). As holdings in New York public school financing cases suggest, successful advocates for education finance reform will include claims under Title VI of the Civil Rights Act rather than relying on equal protection claims.
Universities & Other Institutions of Higher Learning
Daniel Alpert and Robert F. Rich, The Information Revolution: Implications for Higher Education Policy, 2001 J. L. Tech. & Pol'y 291 (2001). This article explores current efforts to strengthen the higher education enterprise through the introduction of new information technologies. In particular, the authors discuss how the Information Revolution is changing the central mission and priorities of colleges and universities and affecting distance-learning programs. The authors consider the potential benefits and threats associated with the "Virtual University," and discuss ways to maximize the benefits and minimize the threats through the use of new information technology.
John P. Cronan, The Diversity Justification in Higher Education: Evaluating Disadvantaged Status in School Admissions, 34 Suffolk U. L. Rev. 305 (2001). This article is a criticism of a purely race-based system of school admissions in light of the diversity justification in Regents of the University of California v. Bakke. It proposes a more comprehensive system of affirmative action that strives to incorporate the strengths of a class-based system and eradicate its weaknesses. This system considers both racial and non-racial factors to indicate whether an applicant faced a disadvantaged past and would contribute to the diversity of the institution.
Regina Rathnau, College Prep: What Every Consumer Should Know about Education Expenses and the Economic Growth & Tax Relief Act of 2001, 14 Loy. Consumer L. Rev. 57 (2001). The article is a summary of the five major tax breaks concerning education expenses provided in the recent Act. The author concludes that the Act provides many benefits, but the taxpayer should be wary of the potential problems.
Adam M. Schloss, Web-Sight for the usually Disabled People: Does Title III of the American with Disabilities Act Apply to Internet Web Sites?, 35 Colum. J.L. & Soc. Probs. 35 (2001). The internet has become widely used as a public good and the author suggests that access to the web should be subject to Title III of the American with Disabilities Act.
However, as internet contributors' funds decrease in order to create an accessible web, the amount of "public good" material could also decrease in proportion to the reduced funds. Therefore, the author says, it would be unwise to pour so much money into funds that would allow the visually impaired to access the internet.
Notes & Comments
Comment, The Case for the New Compelling Government Interest: Improving Educational Outcomes, 80 N.C. L. Rev. 923 (2002). The article explains why an admissions program which uses racial classifications to improve educational outcomes for all students rather than to remedy past discrimination could survive the court's attack on affirmative action.
Comment, Race-Based School Admissions Policies: Will They Continue Into the Twenty-First Century? 23 Whittier L. Rev. 763 (2002). The Supreme Court's decision in Bakke allows a school to consider race in its admission procedures in order to promote diversity. The author of this comment argues that the decision amounts to unclear precedent that is confusing to the lower courts, thus creating geographically divergent interpretations.
Note, Does the Michigan Merit Award Scholarship Program Discriminate Against Minorities and Underpriviledged Students? 47 Wayne L. Rev. 1135 (2001). The Michigan Program relies solely on state standardized tests, alone or in conjunction with a nationally recognized college entrance exam or job skills assessment test, to award the scholarships. Traditionally, students from affluent neighborhoods have outperformed students from poorer neighborhoods on the Michigan state standardized tests. A study of 1999 scholarship recipients indicates that minority students are disproportionately represented. This author believes that a scholarship program that relies so heavily on standardized tests has a disparate impact on Michigan's minorities.
Note, Economics 101: A Study of the Tax-Exempt Status of Colleges and Universities, 34 Suffolk U.L. Rev. 615 (2001). This note considers recent changes to the taxable or tax-exempt status of colleges and universities. Historically, charitable institutions have been tax-exempt, and many colleges have avoided taxation on this ground. However, modern courts are replacing the view that universities are "benefitting the public good," with the concept of universities as "business institutions" that should be taxed by the government.
Note, Individualized School Searches and the Fourth Amendment: What's a School District to do?, 10 Wm. & Mary Bill Rts. J. 489 (2002). This note examines the Supreme Court's reluctance to provide a clear directive to school districts regarding the proper limits of students' Fourth Amendment protections while at school. The author analyzes Supreme Court precedent as well as various state courts' decisions to reveal a wide range of factors, applied with varying weight, used to determine the constitutionality of a school search. The authors ask the Court to clarify the constitutional boundaries of school searches.
Note, Leveling the Playing Field: Applying the Doctrines of Unconsionability and Condition Precedent to Effectuate Student-Athlete Intent Under the National Letter of Intent, 43 Win. & Mary L. Rev. 2181 (2002). Courts have begun to rule that when a student athlete agrees to attend one school in return for financial aid, a binding contract is created. Therefore, if the athletic program is terminated or coaches make other unfulfilled promises to the students, the student-athletes are entitled to sue the school for breach of contract.
Casenote, Citadel Cadets Dodge the State Action Bullet: A Critical Analysis of Mentalvos v. Anderson, 53 S.C. L. Rev. 737 (2002). Under traditional Section 1983 tests, cadets at the publicly-funded school were not state actors for purposes of a female student's sexual harassment claim. The recent holding ignored other tests and the author offers suggestions for similar future actions.
Casenote, Protecting Student Privacy: Reporting Campus Crimes as an Alternative to Disclosing Student Disciplinary Records, 77 Ind. L.J. 143 (2002). The author finds that the provisions of the Campus Security Act which mandate reporting of certain categories of crimes on or near campuses serve to protect the public while allowing schools to protect students' privacy rights.
Symposium, Law, Religion and the Public Good, 75 St. John's L. Rev. 187-314 (2001). Panel One: Educational Vouchers: Legal and Policy Dimensions: Richard W. Garnett, Common Schools and the Common Good: Reflections on the School-choice Debate; Steven Green, Critical Legal Issues Involving Vouchers; Molly Townes O'Brien, Questioning the Power of Consumerism to Reform Public Education; Rosemary C. Salomone, Legal Dimension of Education Vouchers; Joseph P. Viteritti, School Choice: The Threshold Question. Panel Two: Persons of Faith and the Practice of Law: Joseph G. Allegretti, The Lawyer's Calling Revisited: Second Look or Second Thoughts?; Sister Georgia A. Grezler, The Pursuit of Justice; Howard Lesnick, Riding the Second Wave of the So-called Religious Lawyering Movement; Russell G. Pearce, Faith and the Lawyer's Practice.
William Beauchamp, Review of James L. Shulman & William G. Bowen's The Game of Life, 28 J.C. & U.L. 687 (2002). The author finds that this book coherently analyzes the increased tension between collegiate athletics and educational values and interprets statistics distinguishing student athletes and students at large.…