Law Review-PRIMARY & SECONDARY EDUCATION
Anne Richardson Oakes, From Pedagogical Sociology to Constitutional Adjudication: The Meaning of Desegregation in Social Science Research and Law, 14 Mich. J. Race & L. 61 (2008). This Article explores differing perspectives of desegregation between the fields of law and social science. It argues that social scientists see desegregation in terms of social change requiring integration but lawyers see it as a remedy shaped by the nature of the litigation. The author concludes by recommending a perspective based upon the convergence of law, social science, jurisprudence, and affirmative action.
Victoria J. Dodd, The 2007 Roberts Court Education Law Cases: Reaffirmation or Cut-Back of Student Rights, 42 Suffolk U. L. Rev. 61 (2008). The author discusses both the Morse v. Frederick and Parents Involved in Community Schools v. Seattle School District No. 1 decisions, concluding that both were narrowly decided and marked a shift in the constitutional law governing student speech and school desegregation. The author also discussed recent court decisions that relied on these two cases. The author concludes with a discussion treatment of the issue in both the Rehnquist and Roberts Courts.
Rosalie B. Levinson, Misinterpreting "Sounds of Silence": Why Courts Should not "Imply" Congressional Preclusion of §1983 Constitutional Claims, 11 Fordham L. Rev. 775 (2008). The author discusses the text of 42 U.S.C. §1983 within the context of Title IX of the 1972 Education Amendments prohibiting sex discrimination in schools. The author explains that application of the "implied" foreclosure doctrine is used to preclude a remedy under §1983. The Supreme Court is about to review this issue and the author makes the argument for rejecting the "implied" congressional foreclosure of §1983 claims.
Neal H. Hutchens, Silence at the Schoolhouse Gate: The Diminishing First Amendment Rights of Public School Employees, 97 Ky. L.J. 37 (2008/2009). This article discusses the free speech rights of public school teachers and administrators following Garcetti v. Ceballos. Although the Court in that case held a public employee's speech is not protected by the 1st Amendment if made pursuant to the employee's official duties, the uncertain gray areas remain. The author concludes by recommending that lower courts recognize more speech protection in these unsettled areas, and suggests school districts consider granting freedom of communication even where the Supreme Court has not required it.
Adrian Liu, Affirmative Action & Negative Action: How Jian Li's Case Can Benefit Asian Americans, 13 Mich. J. Race & L. 391 (2008). This article discusses the Jian Li lawsuit and how it fits within either affirmative action or negative action. It explores the argument against affirmative action, the inadequacy of the traditional definition of merit, and the use of affirmative action to create true diversity. Finally, it examines negative action, which occurs when Asian-American students have a decreased chance of school admission compared to white students. The author concludes by discussing the advantages of challenging negative action, as opposed to affirmative action, arguing that challenging negative action would address discrimination at its root and stymie perpetuation of the "model minority" myth.
Paul D. Carrington, Freedom to Err: The Idea of Natural Selection in Politics, Schools, and Courts, 17 Wm. & Mary Bill Rights J. 1 (2008). This article discusses the historical development of school curricula, federal court enforcement of the Establishment Clause in the context of the biological science curriculum at primary and secondary school, and three cases where a school's biological science curriculum was amended to accommodate concerns over Establishment Clause violation. The author concludes that local entities or state courts, rather than federal courts, should decide these issues.
Maria Pabon Lopez and Diomedes J. Tsitouras, From the Border to the Schoolhouse Gate: Alternative Arguments for Extending Primary Education to Undocumented Alien Children, 36 Hofstra L. Rev. 1243 (2003). This article discusses Plyler v. Doe and ways to preserve undocumented immigrants' right to public education. The authors argue that an undocumented alien's fundamental right to parent guarantees the right of undocumented children to receive an education. The authors also examine the potential outcome if Plyler v. Doe were decided today, noting that the facts of the case may limit its applicability. The article concludes with a discussion of the application of state constitutional provisions as an alternative means to ensure education for undocumented immigrants.
Nicole B. Casarez, The Student Press, the Public Workplace, and Expanding Notions of Government Speech, 35 J.C. & U.L. 1 (2008). This article criticizes the current trend of courts restricting expression in schools. The author alleges courts have turned their back on school free speech and offers instances where courts have categorized student publications as curricula that are properly controlled by school authorities and where courts have withheld protections from whistleblower teachers. The author concludes that school workplace speech has a private, protected aspect that must be balanced alongside its public, restricted component.
Javier García Oliva, Religious Symbols in the Classroom: A Controversial Issue in the United Kingdom, 2008 BYU L. Rev. 877. This article reviews the history of religious freedom in the United Kingdom, with emphasis on the impact of Article 9 of the European Convention on Human Rights and Human Rights Act 1998 on recent cases involving the right to wear controversial religious clothing in public places. The author suggests that based upon these cases, the British courts are committed to protecting religious freedom but they simultaneously recognize that legitimate limitations on the exercise of religious freedom exist. The author argues that appropriate institutional interference must be allowed so that schools can become forums for teaching, learning, and exchanging of ideas while also modeling peaceful co-existence.
Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 Fla. L. Rev. 1027 (2008). This article analyzes student speech cases involving digital media and questions whether schools should have the power to restrict off-campus expression. The author examines the various justifications for restricting student speech and concludes that none of these justifications support broad authority of a school to restrict student speech in digital media. Additionally, the author argues that since computers, mobile phones, and cameras are critical to communication for both adolescents and the world at large, schools should take the initiative to teach students to use these communication tools responsibly.
Notes & Comments
Filling the First Amendment Gap: Can Gideons Get Away With InSchool Bible Distribution By Exploiting the Play in the Joints Between the Free Exercise and Establishment Clauses?, 28 Wash. U. J.L. & Policy 403 (2008). This Note explores the history of the 1st Amendment and the distribution of religious materials in public schools. It discusses whether the courts were correct in their previous bans on Gideon Bible distribution and considers whether any different conclusion is necessary when schools have a limited public forum policy in place. The author concludes by proposing guidelines for dealing with Gideon Bible distribution at public forum schools in the future.
Don't Get the Wrong Idea: How the Fourth Circuit Misread the Words and Spirit of Special Education Law - and How to Fix It, 65 Wash. & Lee L. Rev. 1707 (2008). This Note explores the historical and procedural background of special education law in the context of uncovering how Congress truly intends the process to work. It discusses the impact that procedural errors can have on the collaborative process and analyzes the mistakes made by the Fourth Circuit. The author concludes by suggesting promulgation of a new procedural rule designed to encourage school personnel and parents to work together to ensure that disabled children receive an appropriate education.
The Changing Faces of Women's Colleges: Striking a Balance Between Transgender Rights and Women's Colleges' Right to Exclude, 15 Cardozo J.L. & Gender 141 (2008). This Note explores the placement of transgender students on women's college campuses. The author discusses the interest of women's colleges in maintaining a single-sex tradition and analyzes the Supreme Court cases that helped define these colleges' rights to exclude based on sex. The author concludes by providing a framework for women's colleges to institute policies that are fair to their transgender students and that honor their single-sex tradition.
Tightening the Belt on Bus Safety: The Need for Safety Belts in Motor Coaches and School Buses, 40 U. Toledo L. Rev. 193 (2008). In light of pending federal legislation this article discusses three areas that provide insight into the seatbelts in school buses controversy. The author assesses modern regulations and their effectiveness, the federal preemption statute and decisions of state courts with applicable statutes, and the current legislation and possible proposals. In conclusion, the author states that the ideal solution is federal legislation mandating seatbelts in school buses.
Association Speaks Louder Than Words: Reaffirming Students' Rights to Expressive Association, 19 Geo. Mason U. Civ. Rights LJ. 193 (2008). This note discusses 9th Circuit precedent that state or local laws can circumvent a group's right to expressive association if the laws are contentneutral. The author concludes that the 9th Circuit's approach does not comport with Supreme Court precedent or the purposes behind the federal Equal Access Act, both of which have recognized that expressive association is a form of protected speech and have sought to promote religious freedom.
Understanding the Free Speech Rights of Public School Coaches, 18 Seton Hall J. Sports & Enter. L. 209 (2008). This comment analyzes free speech and addresses whether a school board may prevent a high school coach from bowing his head and 'taking a knee' while his team prays before a football match. The author examines relevant precedent and advances a standard to be applied in these cases and argues that the school must assert a legitimate educational purpose for preventing the coach from taking a knee. The author concludes that even if the legitimate educational purpose is the preservation of the separation of church and state, a school will have difficulty showing the coach intended to endorse prayer and not teamwork and respect.
Grounding Cyberspeech: Public Schools' Authority to Discipline Students for Internet Activity, 97 Ky. LJ. 149 (2008-2009). This note examines cyberbullying, which occurs when a minor harasses another using interactive technology. The author argues that courts should resolve their vague treatment of school freedom of speech limitations and places emphasis on speech value not where the speech occurred. The author concludes that cyberbullying should be accorded less protection than political school speech because it may cause great injury while only offering minimal social value.
Surviving Rodriguez: The Viability of Federal Equal Protection Claims by Underfunded Charter Schools, 2008 U. 111. L. Rev. 1643 (2008). This note examines three ways a charter school might bring a successful equal protection funding challenge in federal court. The author asserts the best way is to bring factual allegations that the funding disparity falls within the exceptions to the San Antonio Independent School District v. Rodriguez decision, identified in Papasan v. Allain. Given that the sources and the degree of the allegedly disparate funding are significant considerations in an equal funding challenge, the author presents data which suggests that states do not often provide fair access to facility funds for charter schools. The author concludes that this disparity may prove key in formulating a winning equal protection claim.
Unexcused Absence: Why Public Schools in Religiously Plural Society Must Save a Seat for Religion in the Curriculum, 56 Emory LJ. 1431 (2007). This comment traces the interpretation of the establishment clause and discusses the role of religious belief in the United States' political system. The author notes that the Supreme Court has clarified a variety of circumstances in which religion is appropriate in the classroom. The author further notes that nothing in the Court's history prohibits the objective presentation of religious materials in public school classrooms and thus, concludes that public schools should teach students about religion in order to adequately prepare them for their roles as U.S. citizens.
Bringing Cases to Life: Education Law Stories, Fernand N. Dutile, 35 J.C. & UL. 131 (2008). This book addresses discrete areas of law by telling the stories behind the leading cases in each area. The reviewer highlight's the book's attention to the "human drama" behind cases while still covering the legal aspects. The reviewer also praises the book's substance, but does mention the need for more editing. Overall, the reviewer states that the book should be used as a supplemental text or treatise for a law school course.
Harper ex rel. v. Poway Unified Sch. Dist., 445 F. 3d 1166 (9th Cir. 2006); 485 F. 3d 1052 (9th Cir. 2007), 4 Stan. J. Civ. Rights & Civ. Liberties 447 (2008). (First Amendment Claim).
Parents Involved in Cmty. Sch. V. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007)., 107 Mich. L. Rev. 501 (2008).; 97 Ky. LJ. 199 (2008-2009).; 40 U. Toledo L. Rev. 145 (2008). (Equal Protection Claim).
Garcetii v. Ceballos, 547 U.S. 410 (2006), 35 J.C. & U.L. 75 (2008); 16 Geo. Mason L. Rev. 173 (2008). (§ 1983 Complaint).
Brown v. Bd. of Educ, 347 U.S. 483 (1954); Sheff v. O'Neill; 678 A.2d 1267 (Conn. 1996), 25 Thomas M. Cooley L. Rev. 1 (2008). (Equal Protection Claim).
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), 35 Fordham Urb. L.J. 1191 (2008). (First Amendment Claim).
Mayer v. Monroe county Community School Corp., 474 F. 3d 477 (2007), 16 Geo. Mason L. Rev. 173 (2008). (§ 1983 Claim).
A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (2007), 19 Geo. Mason U. Civ. Rights LJ. 169-192 (2008). (§ 1983 Claim).
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), 94 Va. L. Rev. 1963 (2008). (Equal Protection Claim).
Morse v. Frederick, 127 S. Ct. 2618 (2007), 60 Baylor L. Rev. 1046 (2008). (First Amendment Claim).
Kromko v. Ariz. Bd. of Regents, 146 P.3d 1016 (Ariz. App. Div. 1 2006); 165 P.3d 168 (Ariz. 2007), 40 Ariz. St. LJ. 1161 (2008). (Political Question).
Education as a Civil Right. 4 Stan. J. Civ. Rights & Civ. Liberties 151-473 (2008). Stuart Bigel, Court-Mandated Education Reform: The San Francisco Experience and the Shaping of Educational Policy After Seattle-Louisville and Ho v. SFUD:, Amanda R. Broun and Wendy D. Puriefoy, Public Engagement in School Reform: Building Public Responsibility for Public Education; John E. Coons, Private Wealth and Public Schools; Preston C. Green III, Bruce D. Baker and Joseph O. Oluwole, Achieving Racial Equal Education Opportunity Through School Finance Litigation; Jeannie Oakes, John Rogers, Gary Blasi and Martin Lipton, Grassroots Organizing, Social Movements, and the Right to High-Quality Education; Stephen A. Rosenbaum, Full Sp [ ]Ed Ahead: Expanding the IDEA Idea to Let All Students Ride the Same Bus; James E. Ryan, Charter Schools and Public Education; Paul L. Tractenberg, Beyond Educational Adequacy: Looking Backward and Forward Through the Lens of New Jersey.
Reflecting on Justice Sandra Day O'Connor's Jurisprudence Relating to Race and Education. 57 Cath. U. L. Rev. 947-1150 (2008). Derek W. Black, The Uncertain Future of School Desegregation and the Importance of Goodwill, Good Sense, and a Misguided Decision; George La Noue and Kenneth L. Marcus, "Serious Consideration" of Race-Neutral Alternatives in Higher Education; Earl M. Maltz, Ignoring the Real World: Justice O'Connor and Affirmative Action in Education; Harry G. Hutchinson, Moving Forward? Diversity as a Paradox? A Critical Race View.…
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Publication information: Article title: Law Review-PRIMARY & SECONDARY EDUCATION. Contributors: Not available. Journal title: Journal of Law and Education. Volume: 38. Issue: 3 Publication date: July 2009. Page number: 523+. © Jefferson Law Book Company Jan 2009. Provided by ProQuest LLC. All Rights Reserved.
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