Analysis and Commentary on Education

The Supreme Court Again Fractures Over Race

Justia columnist and Cornell law professor Michael Dorf discusses the U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action. He provides a brief history of Supreme Court jurisprudence on race and contrasts that history with yesterday’s fractured opinions, which consist of a plurality opinion, three concurrences, and a dissent (with Justice Kagan recused). Dorf explains that while the decision has relatively low doctrinal stakes, the case exposes three important fault lines running through the Roberts Court.

Destroying Our Universities by Turning Us Against Ourselves

Justia columnist, George Washington University law professor, and economist Neil Buchanan discusses the imminent threats to the university as an institution. Buchanan describes how anti-intellectualism, political opportunism, and short-sightedness are putting American greatness at risk. Finally, he highlights some of the myths and truths about tenure and its role in perpetuating the university’s role in society.

Hair Makes the Man: Federal Appellate Court Says Short-Hair Requirement for Male Athletes Is Sex Discrimination

Justia columnist and Hofstra law professor Joanna Grossman tells the story of a boy in Indiana who sued for, and won, the right from the Seventh Circuit Court of Appeals for male athletes to wear their hair long during the athletic season, or at least for the right for boys not to be forced to cut their hair while female athletes are allowed to wear theirs long. Grossman discusses the ruling and why, although it corrects some of the missteps made by other federal courts in grooming-code cases, it does not go far enough to eliminate the gross stereotyping implicit in many sex-specific appearance codes.

The Federal Government Turns Its Focus to Sexual Assault on Campus

Justia columnist and Cardozo law professor Marci Hamilton comments on the topic of college campus sexual assault, which is disturbingly frequent—so much so that the Obama Administration is now focusing on it. Hamilton considers ways to protect college women, especially women in college sports; notes how college men can help in rape prevention; and argues that worries about false accusations by women are overblown.

Who Is Looking at Your Kids’ School Data? Why Congress Needs to Take Note

Justia columnist and U. Washington law professor Anita Ramasastry comments on school districts' sharing student data with private companies that manage various functions for the districts. How did this happen? Because, Ramasastry notes, in recent years, Congress has made changes to the Family Education Rights and Privacy Act (FERPA) that have created a potentially broad loophole regarding who has access to student data.

College Athletes, Full-Ride Scholarships, and Anti-Intellectualism

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the compensation that college athletes receive, and notes that they would probably do worse under a wage-paying system. He also contends that the reason that people often dismiss the idea that college players are paid is that the payment comes in the form of athletic scholarships. The cynical view is that this payment is not real, with players being deprived of the education that schools pretend to offer them. However, Buchanan notes, it turns out that the reality is different than the cynics’ take on it, and much more nuanced.

Should a Public Middle School Grammar Teacher Be Able to Teach a Lesson About the “N Word”?

Justia columnist and attorney Julie Hilden comments on a case from the U.S. District Court of the Northern District of Illinois, which involved a public school grammar teacher who—after intercepting a student's note that included rap music lyrics—continued the discussion, which then moved on to the use of the “N Word.” Hilden argues that the teacher should not have been suspended without pay as a result of the “N Word,” the use of which, by a teacher, in context, should not have resulted in the teacher's punishment.

Should Schools Stalk Students Online to Prevent Cyberbullying?

Justia columnist and University of Washington law professor Anita Ramasastry comments on a Southern California school district’s decision to retain a private firm to search the Web and look for public posts, photos, tweets, and other communications made by its students. The district’s stated purpose for retaining the firm is to prevent students from harming others—and, in particular, to stop cyberbullying. But Ramasastry notes that the company that does the monitoring also finds out a lot of other information about students, as well.

Playing “Too Womany” and the Problem of Masculinity in Sport

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and University of Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, which transformed athletics for women and girls. Yet, they note, serious problems remain. Grossman and Brake note issues such as the cost of prizing masculinity in sports and the collateral damage of masculinity, including rape, gang-rape, and male-on-male hazing and assault. They also discuss the daunting task of changing sport culture, suggesting that community sports programs, especially in the younger years, should encourage more co-ed play, so that kids learn young to respect all athletes, both male and female, at a young age.

Sullivan & Cromwell and Yeshiva University Issue a Disappointing Report on Child Sex Abuse That Is Short on Facts and Long on Public Relations

Justia columnist and Cardozo law professor Marci Hamilton comments on the investigation that occurred after many months, and many media stories about child sex abuse at the Yeshiva University High School (YUHS) in The Jewish Daily Forward. In the end, Yeshiva University released an “independent investigation” led by Karen Patton Seymour of Sullivan & Cromwell. Hamilton takes strong issue with the report that resulted from the investigation, and explains in detail her sharp criticisms of it, and what she contends that it should have contained, but did not. She also argues that, in this situation, pending litigation is a poor excuse for nondisclosure, especially in light of the statute-of-limitations situation in New York.

Advice for the Law School Class of 2016: Ten Suggestions for Incoming Law Students

Justia columnist and U.C., Davis law professor Vikram David Amar offers advice for those who are starting law school this Fall. Amar bases his advice on his own experience as a law student, as a practicing lawyer, and as someone who has taught at four law schools over the past two decades. He offers certain advice that is intuitive but very much worth keeping in mind, and certain advice that is less intuitive and also worth poring over before classes start.

A Restroom of One’s Own: The Maine Supreme Court Considers A Transgender Student’s Exclusion From the Girls’ Bathroom

Justia columnist and Cornell law professor Sherry Colb comments on a Maine Supreme Court case regarding a child who was born male, but identified as a girl (“Susan Doe”). Susan’s school allowed her to use the girls’, rather than the boys’ bathroom, until a student’s grandfather complained, and Susan was required to use a separate, staff-only restroom that no other students used. Colb discusses the arguments—pro and con—for allowing Susan to use the girls’ bathroom at the school, just as other girls would.

Abuse in the Sports World, and What Needs to Be Done About It

Justia columnist and Cardozo law professor Marci Hamilton discusses abuse in the world of sports, including school, amateur and professional sports. While child sex abuse has been a problem in this world, physical, emotional, and verbal abuse are far too common, and need to stop as well, Hamilton urges. She cites the example of Rutgers basketball coach Mike Rice, but stresses that Rice is far from alone in his abusive behavior. And, Hamilton notes, it is a problem that athletes looking for—or wanting to continue with—college scholarships feel that they have no other choice but to take the abuse. Hamilton asks us all to imagine sports as it should be: free of bullying and fear, and offers a model code of conduct for sports addressing the various forms of abuse that athletes may suffer, as well as reporting requirements when abuse does occur.

Coaches’ Codes of Conduct: What Universities, Schools, Teams, and Leagues Must Do in the Wake of the Penn State, Olympic Swimming, and Poly Prep Country Day School Child Abuse Scandals

Justia columnist and Cardozo law professor Marci Hamilton discusses what the institutions and people who oversee youth and school sports must do in order to avoid child sex abuse, and other types of abuse that can be related to sports, such as verbal abuse. Hamilton begins by noting that we need to clearly define what is abuse, whether sexual, verbal, or otherwise. In addition, she argues that youth athletic organizations need to institute hotlines for reporting abuse, and also to ensure backup support for young athletes if a hotline alone is not enough, as it may not be in some circumstances. In addition, Hamilton discusses the institution of penalties for adults who know of abuse and do nothing, and notes how sports culture can be changed for the better with the help of The Positive Coaching Alliance.

Reforming the Legal Profession: The Need for Adequate Career Advice Before Law School

Justia columnist and attorney David Kemp discusses the disparity between legal education and the legal profession. He describes the strengths and shortcomings of a legal education as provided by many law schools today. He then contrasts what law school provides with what is actually demanded of attorneys, finding that there is a sharp discontinuity between the two. He argues that while some measures have been undertaken to fix the problem, such as revised curricula and state certification of limited-license legal technicians, no solution can be adequate without also considering the career advice that students receive prior to deciding on a legal career and applying to law school.

Why North Carolina’s New Law Making It a Crime for Students to Bully Teachers Online Is Deeply Troubling From a First Amendment Standpoint

Justia columnist and attorney Julie Hilden covers a new North Carolina law, described by the North Carolina ACLU as possibly the first of its kind in the United States, which seeks to protect teachers from students’ (1) building a fake online profile or website of the teacher; (2) posting the teacher’s private, personal, or sexual information; (3) tampering with the teacher’s online networks, data or accounts; (4) signing the teacher up to a pornographic website; or (5) making any statement, whether true or false, that is likely to provoke someone else to stalk or harass the teacher. Violations of any of these five provisions carry criminal penalties. Hilden argues that the law’s genuine concern for protecting teachers is already sufficiently addressed by existing civil and/or criminal law, and that to the extent that the provisions go further than existing law, they may raise serious First Amendment issues—issues that have already left the North Carolina ACLU primed to challenge the statute. Hilden also underlines the point that teachers typically have far greater resources and maturity to deal with bullying than students do, and thus, she argues, teachers need less protection from bullying than students do.

Equal Access to the Tools of Political Change; The Sixth Circuit’s Coalition to Defend Affirmative Action Case Is Destined For the Supreme Court

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a closely watched affirmative action case that the Supreme Court will very likely resolve. As Amar notes, the case concerns how a state that tries to abolish affirmative-action programs may, in doing so, violate the Constitution. As Amar explains, such programs are never constitutionally required to be initiated, but their abolition may be constitutionally problematic—for instance, if programs that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult; or when minorities are subjected to greater political obstacles in the adoption (or re-adoption) of the programs they might support than are other groups.

A Mississippi Public School Student’s Rap Song Gets Him a Suspension, and a First Amendment Case

Justia columnist and attorney Julie Hilden comments on a federal district court case that was brought after Mississippi teen Taylor Bell was suspended based on the lyrics of a rap song he wrote and posted on Facebook and YouTube, where it was heard by his high school classmates. Hilden explains why the case implicated the U.S. Supreme Court’s decision in Tinker v. Des Moines, even if the rap song fell short of constituting a “true threat” under other free speech precedents. Taylor lost before the federal district court, but, as Hilden explains, his attorney has noted a number of key points that will likely help strengthen Taylor’s case in the planned appeal.

The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an interesting lawsuit that involves both the Free Speech Clause and the Establishment Clause of the First Amendment. The suit was brought by a group of public high school cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games. Does the Establishment Clause forbid what they are doing? And does the Free Speech Clause come into play? Amar and Brownstein address the complex constitutional issues that the case presents.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more