Analysis and Commentary on Education

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.

Why a Missouri School Speech Case Doesn’t Merit Supreme Court Review, and What Kind of School Speech Case Likely Will

Justia columnist and attorney Julie Hilden comments on a recent school speech case from Missouri in which twin brothers, both high-school juniors, created a blog that derogated fellow students in racist and sexist ways. Hilden argues that it’s no surprise that the brothers were suspended from their school and required to continue their studies elsewhere, given that the U.S. Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. allows students to be punished when substantial disruption foreseeably results from speech that they directed at their school. She also notes that it is unlikely that the U.S. Supreme Court would grant review in a case like this one, and describes the kind of school-speech case that might, conversely, be a good candidate for the Court’s review.

How Religious Bullies Have Recently Sought to Impose Their Views on Others, in Pakistan and Here in the U.S.

Justia columnist and Cardozo law professor Marci Hamilton comments on an incident in Pakistan in which a 14-year young woman was shot by the Taliban because she voiced her view that girls should be educated; and an incident here in the U.S. where the American Family Association—which is characterized by the Southern Poverty Law Center as a hate group—has essentially come out in favor of the bullying of homosexual children on Mix It Up at Lunch Day, which is meant to break up cliques, even if just for one day. Hamilton argues that the first incident shows the need for the international recognition of civil rights, and of the rule of law, and the second incident involves a particularly repellent form of homophobia that has no place in our public schools. Each incident is made all the worse, Hamilton suggests, because children are the victims. Hamilton reminds us, too, that we are fortunate here in the U.S. to have the benefit of the First Amendment's Establishment and Speech Clauses.

The Recent Supreme Court Affirmative Action Oral Argument Zeroes in on the Concept of “Critical Mass”

Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.

Eroticized Violence and Corporal Punishment in Public Schools: A Controversy Over Males Spanking Female Students, and Its Implications

Justia guest columnist and Cornell Law Visiting Fellow Antonio Haynes comments on a recent controversy in which parents of two public school students did not object to their daughters undergoing corporal punishment (specifically, paddling), but did object to the punishment being carried out by men, rather than women. Haynes points out that, upon closer examination, the issue here is not actually about sex, but about sexual orientation; the parents assumed the males conducting the spankings were straight and thus thought that they might find performing the spankings erotic. Noting that corporal punishment in the schools has not been ruled by the Supreme Court to be unconstitutional, and that 19 states still allow it, Haynes suggests that issues like who may administer a spanking tend to distract us from asking deeper questions such as why we still accept corporal punishment in our schools, and why—if we trust school officials to paddle students—we do not also trust them not to harbor erotic motives while doing so.

The Controversy Over a Teacher’s Criticism of a Student’s Romney/Ryan T-Shirt, and a Possible Solution for the Future

Justia columnist and attorney Julie Hilden comments on the recent controversy over a Philadelphia public school geometry teacher's deriding student Samantha Pawlucy for wearing a Romney/Ryan T-shirt. The incident blew up into a full-blown controversy, with Romney personally calling the girl and speaking with her parents. Hilden parallels the incident to the key 1969 Supreme Court student-speech case, Tinker v. Des Moines Ind. Comm. Sch. Dist., in which students near Pawlucy's age wore black armbands in school in order to protest the Vietnam War. Hilden also argues that Pawlucy’s is an easy case, and that she would have a much harder First Amendment case, had the incident occurred in a History or Social Studies class. Finally, Hilden questions whether this was a case of teacher/student bullying, and suggests that teachers and students alike should be required to learn basic school-speech First Amendment tenets.

Biometrics in the School Lunch Line: Why Parents Should Be Concerned About the Privacy Implications of This Trend

Justia columnist and U. Washington law professor Anita Ramasastry comments on the use of biometrics in school lunch lines and elsewhere in schools. More specifically, she notes, schools are using an infrared scanner that identifies children’s unique palm and hand vein patterns, and converts these patterns into an algorithm through which the child can be recognized quickly and uniquely by a hand scan. Ramasastry raises privacy concerns about this kind of scanning: Could it lead kids to see other compromises of their privacy as commonplace? Will the databases that contain the scans be used for other purposes—even when the kids become adults? Might law enforcement attempt to use the databases of the hand scans? And what about parents with religious objections to schools’ using the hand scans on their children? At the very least, Ramasastry suggests, the scanning system should be “opt in” and not “opt out,” so that parents can think carefully about allowing their children to become part of the scanning system, and thus part of the related database.

Single-Sex Public Schools and Classes: A Dangerous Lesson in Stereotypes?

Justia columnist and Hofstra law professor Joanna Grossman comments on some troubling aspects of the federal regulations regarding single-sex public schools and public-school classes, and how those regulations have often been distorted in practice. These developments, Grossman notes, have led to a current nationwide ACLU investigation, from which preliminary findings have been made; and to a lawsuit, with more suits possibly to come. Grossman first explains the law and regulations that govern single-sex public schools and public-school classes, some of which derive from George W. Bush Administration regulatory changes that took effect in 2006. Detailing the content of the regulations, Grossman then argues that they not only run afoul of the law, but are also likely damaging the very children whom they are supposed to be helping. She also questions the decision to have schools self-enforce the very rules that are supposed to bind them. In addition, Grossman cites other baleful aspects of the 2006 changes, including their tendency to invite gender stereotyping, along with gender segregation, and the fact that they were based on what is clearly now-discredited science. Grossman argues that the Obama Administration’s Department of Education’s Office of Civil Rights (OCR) should now take the opportunity to correct and update the regulations at issue.

Does the Diversity Justification for Affirmative Action (Mis)Use Minority Students? Reassessing the Supreme Court’s Decision in Grutter

Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

Teaching (and Learning) About United States v. Alvarez, the Stolen Valor Act Case

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss the Supreme Court’s decision in United States v. Alvarez. As they explain, the case concerned the Stolen Valor Act, which imposes criminal penalties on those who falsely claimed to have been awarded the Congressional Medal of Honor or another medal granted by the United States. The Court had to decide whether the Act violated the First Amendment. Amar and Brownstein offer a subtle analysis of the various doctrinal moves that were made, in the case, by the Justices who joined the plurality opinion, the concurrence, and the dissent in the case, respectively. They focus especially on a search for a limiting principle that goes just far enough, but not too far, in the case, and target their analysis especially toward law professors who seek to teach the case, and students who seek to better understand it.

What a Recently Released Study Ranking Law School Faculties by Scholarly Impact Reveals, and Why Both Would-Be Students and Current/Prospective Professors Should Care

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent study ranking law schools by scholarly impact that was conducted by University of Chicago professor Brian Leiter, who also contends that the most well-known law-school-ranking system, that of U.S. News & World Report, is seriously flawed. Amar covers ranking methodology; describes what the most recent Leiter rankings show; and explains why the U.S. News rankings tend to differ somewhat from the Leiter rankings. Amar also addresses a key underlying question for any law school ranking: How much should a school’s scholarly productivity count, as opposed to other possible ranking factors?

A Florida Court Allows a College Professor to Learn the Name of a Student Who Lodged a Complaint Against Him: Was This the Right Result?

Justia columnist and attorney Julie Hilden comments on an interesting case regarding educational privacy. The case arose when a Florida college instructor sought to find out the name of the student who had filed a complaint with the college against him. Federal and Florida law regarding student privacy were stumbling blocks, but the instructor ultimately did find out the name of the complaining student. As Hilden explains, precedent indicates that students’ educational privacy rights yield only if a given communication is held to be not directly, but only tangentially, related to a student. Here, that very holding was made—since although the student sent the complaint, the substance of the complaint was about the professor. Hilden questions the court’s reasoning, and questions, more broadly, whether privacy is much needed in the education context in the first place.

Bringing Title IX to Bear on the Problem of Sexual Violence in Schools: Part Two of a Two-Part Series

In Part Two of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman continues her discussion of the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result. Here, Grossman stresses, among other points, that a police investigation of alleged sexual harassment or assault is no substitute for the required school investigation that is mandated.

Bringing Title IX to Bear on the Problem of Sexual Violence in Schools

In Part One of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman discusses the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result.

What’s Wrong With “Doping” to Get A’s In High School?

Justia columnist and Cornell law professor Sherry Colb comments on the recent phenomenon of high school students’ using stimulants such as Adderall and Ritalin to attempt to improve their academic performance, often getting the stimulants by faking Attention Deficit Hyperactivity Disorder (ADHD). Colb notes that for those who do not have ADHD, the drugs act as a stimulant, allowing the user to better concentrate and focus. Colb compares and contrasts the issues raised by steroids scandals in professional sports to illustrate what, exactly, is wrong with this kind of use of Adderall and Ritalin. Among other points, Colb expresses concern that students’ use of such drugs will become the “new normal”—which is especially worrisome as the drugs carry side effects and serious risks. She also suggests that we, as a society, reconsider the competitive model of high school studying, and instead focus on students’ learning about subjects that interest and inspire them individually.

Making Your Point: A Special Question & Answer Session About Effective Advocacy, with Ross Guberman

Justia columnist and former counsel to the president John Dean does a Q&A with Ross Guberman, the author of the book Point Made: How to Write Like the Nation's Top Advocates (Oxford 2011). The interview covers how Guberman got into the teaching of legal writing and honed his skills in the field, the effect good writing can have on a case, and the methods and techniques that Guberman uses himself, and teaches others. Readers may be especially interested in Guberman's account of three mistakes that lawyers often make in drafting and presenting their arguments. Finally, Guberman previews his next book, which will comment on well-written judicial opinions.

A Spate of Complaints Asking Libraries to Censor the Hunger Games Trilogy: Why We Should Keep the Books Accessible to Kids

Justia columnist and attorney Julie Hilden discusses the types of complaints that libraries have received about the books in the Hunger Games trilogy, and argues that libraries should nevertheless keep the books on the shelves. The complaints that Hilden discusses claim that the books contain sex, are anti-ethnic, are anti-family, contain material that is “occult/satanic,” and are too violent. Except for the claim about violence, Hilden argues, these claims are inaccurate on the facts—they either do not accurately describe the books’ content, or they fail to put material from the books in proper context. Finally, regarding the claim about violence, Hilden notes that a number of classic works that are commonly taught in schools contain violent acts—and even, in cases like Lord of the Flies, acts of violence among children.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more