Commentary - UNIVERSITIES AND OTHER INSTITUTIONS OF HIGHER LEARNING
Richard Duncan, The "Clearest Command" of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships That Classify Religions, 55 S.D. L. Rev. 390 (2010). The author attempts to reconcile the Establishment Clause with the facts of a recent Supreme Court decision which denied funding to students pursuing college degrees in "devotional theology." The author argues that if that decision had been litigated under the Establishment Clause rather than the Free Exercise Clause, the Court may have held the exclusion of students to be unconstitutional denominational discrimination.
Erica Goldberg & Kelly Sarabyn, Measuring a "Degree of Deference:" Institutional Academic Freedom in a Post-Grutter World, 51 Santa Clara L. Rev. 217 (2011). This article is about the application of the concept of academic freedom to universities following the U.S. Supreme Court's decision in Grutier v. Bollinger. The authors argue that constitutional academic freedom should apply only to university actions that serve a legitimate academic purpose as defined by the authors. They also argue against the use of institutional autonomy in a manner that impedes the rights of students or professors. Finally, they advocate a legal test applying different amounts of deference to university decisions depending on the decision maker and the context in which academic freedom is invoked.
Kathy Garcia, Poison Pens, Intimidating Icons, and Worrisome Websites: Off-Campus Student Speech That Challenges Both Campus Safety and First Amendment Jurisprudence, l'i St. Thomas L. Rev. 50 (2010). This article looks at the problems schools face in dealing with off-campus speech directed at on-campus authences. The article traces the development of students' First Amendment speech rights in relation to the campus setting. The article concludes by advocating for an exception to students' speech rights on the ground that off-campus threatening speech is especially problematic in the face of school shootings and suicides occurring on campuses nationwide and that the current legal framework is insufficient to handle such problems.
Azhar Majeed, Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students' Speech Rights, 8 Cardozo Pub. L. Policy & Ethics J. 515 (2010). This article proposes that institutions of higher education violate students' free speech by applying unconstitutional speech codes to protected free speech, censoring student newspapers and shutting down campus protests and speaker events. The author argues that university administrators have hidden behind qualified immunity shields, where government officials acting under the color of state law are protected from personal liability, and that they should be denied such immunity for two types of First Amendment violations: first, unconstitutional speech codes that encompass protected speech, and second, censorships and punishment of protected speech and protected activity. The author concludes that disallowing immunity would permit students to collect monetary damages directly from university administrators, which would encourage them to reexamine their unconstitutional policies and practices. …