Maurice C. Daniels & Cameron Van Patterson, (Re Considering Race in the Desegregation of Higher Education, 46 Ga. L. Rev. 521 (2012). This article discusses the desegregation of higher education institutions, and specifically the struggles faced by the University of Georgia. The article focuses on the change in case law from remedying race-based discrimination with the use of affirmative action plans to a focus on diversity. The author also discusses the trend toward "colorblind" social policies as Federal Courts are beginning to suggest that race equality is no longer a compelling state interest.
Michael A. Olivas, Governing Badly: Theory and Practice of Bad ideas in College Decision Making, 87 Ind. L.J. 951 (2012). This article explores poor policy making decisions on the part of universities. In evaluating examples of what are believed to be poor policy decisions, the article explains how these decisions remain internalized within the schools, allowing for very little "academic common law" to correct errors or overturn bad decisions. In addition, the author explores theoretical approaches to understanding the failures caused by poor decisionmaking in this context and legal standards for correcting the decisions.
Mary Margaret Penrose, Tattoos, Tickets, and Other Tawdry Behavior: How Universities Use Federal Law to Hide Their Scandals, 33 Cardozo L. Rev. 1555 (2012). This article discusses how universities and their athletic programs rely on the Family Education Rights and Privacy Act (FERPA) to keep from disclosing student-athlete misbehaviors, which shed negative light on these universities. The author explores the recent case decisions and four particular case studies to show that universities misuse the FERPA defense by claiming information sought by outsiders to be private student education records. The author concludes with steps Congress can take to prevent universities from relying on FERPA to keep misbehavior and corruption secret, which include a limited definition of "education records," reciprocity among documents, banning advance waivers, and a penalty scheme.
Bryan R. Lemons, Public Education and Student Privacy: Application of the Fourth Amendment to Dormitories at Public Colleges and Universities, 2012 BYU Educ. & L.J. 31. This article discusses how Resident Assistants and other university officials must comply with Fourth Amendment requirements when conducting searches of dormitory rooms. The author analyzes several cases in which universities provide general provisions to search dormitory rooms for health and safety. These provisions do not waive students' constitutional rights. The article concludes that students do have a reasonable expectation of privacy. Just as police officers must follow procedures and meet certain requirements when seeking to search apartments and homes, college and university officials must meet the same criteria in searches of dormitories.
Paul Finkelman, Breaking the Back of Segregation: Why Sweatt Matters, 36 Thurgood Marshall L. Rev. 7 (2010). The author explains the history preceding the revolutionary Supreme Court decision in Sweatt v. Painter, which led to the integration of southern institutions of higher education. This article starts with the infamous "separate but equal" Supreme Court decision in Plessy v. Ferguson and then moves to the rule of Jim Crow laws in order to set the stage for higher education prior to Sweatt. The Court held in Sweatt that institutions of higher education created solely for black students were not "separate but equal" and must be integrated. This decision was innovative because it overhauled segregation in education years before the Supreme Court decided Brown v. Board of Education.
Gabriel J. Chin, Sweatt v. Painter and Undocumented College Students in Texas, 36 Thurgood Marshall L. Rev. 39 (2010). This article explains the Supreme Court's rationale in deciding Sweatt v. Painter, which invalidated segregation in higher education. It then relates the Sweatt principle to the Court's later decision in Plyler v. Doe. Plyler held that undocumented children could not be denied a primary or secondary education because of their undocumented status. These cases both considered the future consequences of allowing segregation to continue. In both cases the Court found that the consequences could not justify the segregation.
Susan P. Stuart, "Hope and Despondence": Emerging Adulthood and Higher Education's Relationship with its Nonviolent Mentally III Students, 38 J.C. & U.L. 319 (2012). This article focuses on the problems faced by campus administrators in trying to differentiate between students who are mentally ill and a threat to others and those who are mentally ill but harmless. Some campuses choose to lump together all of the mentally ill students, which has led to blanket and involuntary withdrawal policies. Others take a hard-line approach to tolerance for violent manifestations of mental illness. The author concludes by arguing that colleges, students, and their parents need to work together to create a solution which will fairly address the needs of all mentally ill students.
Student Work - Articles, Notes, and Comments
Benjamin Dower, The Scylla of Sexual Harassment and the Charyhdis of Free Speech: How Public Universities Can Craft Policies to Avoid Liability, 31 Rev. Litig. 703 (2012). This comment analyzes public universities' needs to both balance the protection of students, staff, and faculty from sexual harassment and create a policy that does not violate free speech rights. The author discusses sexual harassment law and the apparent conflict between Title VII of the Civil Rights Act of 1964 and the First Amendment of the U.S. Constitution. The author further analyzes current universities' sexual harassment policies and suggests that drafting a new model policy can provide a clear way of handling both protected and unprotected speech.
Ronald J. Coleman, Stratification, Inequality, and the SAT: Toward an SAT-Optional Movement, 18 Geo. J. on Pov. L. & Policy 507 (201 1). In this article, the author contends that the current format of the SAT perpetuates educational inequality. The author identifies several four-year colleges that have implemented an SAT-optional admissions process and argues that the further implementation of these programs at other schools will serve as a substantial initial step toward diminishing educational inequality. The author concludes by noting that SAT-optional programs will not create an unreasonable burden on universities but rather incentivize standardized test creators to develop assessment tests that better measure different cognitive abilities.
Vasanth Sridharan, The Debt Crisis in For-Profit Education: How the Industry has Used Federal Dollars to Send Thousands of Students into Default, 19 Geo. J. on Pov. L. & Policy 331 (2012). This comment addresses the crisis of for-profit education loan debt. Almost one in four students who take out loans at a for-profit institution are unable to pay back those loans three years after they enter the repayment phase. The biggest difference between for-profit institutions and traditional colleges and universities is the profit motive. There are few resources available to the students once they enroll, which increases the likelihood that the students will withdraw and subsequently default on their loans. The federal government is essentially underwriting the loan default crisis by treating for-profit institutions the same as colleges and universities. The author concludes by stating that new regulations backed by the Obama administration have not done enough to ensure these students get a better education.
Brooks H. Spears, Fisher v. U. of Tex. at Austin, 645 F. Supp. 2d 587 (2009), 46 U. Rich. L. Rev. 1113 (discrimination in post-secondary education).
Meggen Lindsay, Tatro v. U. of Minn., 800 N.W.2d 811 (201 1), 38 Wm. Mitchell L. Rev. 1470 (students' free speech rights).
Michael R. Denton, Christian Leg. Socy. v. Martinez, 130 S.Ct. 2971 (2010), 72 La. L. Rev. 1055 (protection of religious groups and university policies).…