Articles, notes and commentary

ARTICLES, NOTES AND COMMENTARY

Articles

Gerard V. Bradley, An Unconstitutional Stereotype: Catholic Schools as "Pervasively Sectarian," 7 Tex. Rev. L. & Pol. 1 (2002). The Supreme Court has long held that it is impossible for a recognized Catholic school to receive any federal funding,

David L. Dagley and Carole A. Veir, Subverting the Academic Abstention Doctrine in Teacher Evaluation: How School Reform Legislation Defeats Itself, 2002 BYU Educ. & L.J. 123 (2002). Since 1983, schools have used improved methods to address the needs for productive teacher evaluations. For instance, many states have allowed legal action to prevent termination proceedings for problem teachers. Such states afford a remediation proceeding for remedial causes, such as incompetence. This allows the decision to terminate a teacher to become more than simply a school board decision. Instead, some legal rights are granted to teachers before termination.

Cindy Gallagher, Sticks and Stones Have Remedies at Law-It Is Name Calling That Hurts Kids: Can State Anti-Bullying Statutes Really Help Kids Who Are Victims of In-School Bullying?, 4 U.S.F. J.L. & Soc. Challenges 21 (Spring 2002). There has been an increase in lawsuits against schools, due to children being bullied, especially with issues involving sexual harassment or children who are physically injured. In regards to sexual harassment suits against teachers or peers, the schools must have some knowledge of the harassment before the child may bring a Title IX lawsuit. In cases where the teacher harasses a child, the child must also show he or she was denied educational benefits as a result of the harassment. In peer-to-peer harassment, the child must show that after the school knew of the harassment, it was deliberately indifferent.

Richard W. Garnett, The Right Questions about School Choice: Education, Religious Freedom, and the Common Good, 23 Cardozo L. Rev. 1281 (2002). The author argues for the constitutionality of the Ohio school-choice programs addressed by the Supreme Court in Zelman v. Simmons-Harris. It is possible to have voucher programs that do not violate the Establishment Clause. In addition to cost-effectiveness and improvement through competition, educational choice promotes dignity and the common good.

Michelle Goodwin, Sex, Theory, & Practice: Reconciling Davis v. Monroe & the Harms Caused by Children, 51 DePaul L. Rev. 805 (2002). In Davis v. Monroe County Board of Education, the Supreme Court brought sexual harassment claims between school children within the purview of Title IX. The author looks to that influential decision and questions the merits and drawbacks of judicial intervention, concluding that the courts are not the best venue to deal with this problem. The solution lies in increasing knowledge about sexual harassment among youths and instituting training for teachers and students based on that knowledge.

Todd Hagins, Mother Goose and Father God: Extending the Equal Access Act to Pre-High-School Students, 15 Regent U. L. Rev. 93 (2002-2003). Despite the increased access that student religious groups enjoy at universities and high schools, these groups are still strongly limited in the pre-high school environment. The author argues that the policy of limited access in pre-high school environments ignores other rights enjoyed by students and parents. Extension of the Equal Access Act to pre-high school students would protect these additional rights.

Diane Heckman, The Evolution of Drug Testing of Interscholastic Athletes, 9 Vill. Sports & Ent. L.J. 209 (2002). The author addresses the constitutionality of drug testing in schools. Using the Supreme Court decision in Vernonia School District 47J v. Acton as a focal point, the author provides an exhaustive look at how courts have dealt with the issue. The author concludes that the Supreme Court should put an end to the degradation of students' privacy rights prevalent in court decisions since Vernonia.

Jason S. Marks, Legally Blind? Reevaluating Law School Admissions at the Dawn of a New Century, 29 J.C. & U.L. 111 (2002). Legal education is not simply the practice of providing information, it is a moral and aesthetic enterprise. Therefore, the selection process should reflect a desire to accurately represent the diversity of society. As the Supreme Court observed in Sweatt v. Painter, "law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts."

Judith G. McCullen, Behind Closed Doors: Should States Regulate Home Schooling?, 54 S.C.L. Rev. 75 (2002). Educating children at home has become increasingly popular due to many children leaving public schools with minimal skills. The author believes that while regulation is necessary, it should be minimally intrusive and be used only to monitor home schooling by parents who may not be teaching the children.

Andrew D.M. Miller, Balancing School Authority and Student Expression, 54 Baylor L. Rev. 623 (2002). Student-initiated speech could be subject to viewpoint discrimination only if the school can prove the viewpoint affects a school's ability to function or impacts the rights of others. A school may also prohibit obscene and lewd speech.

Virgina H. Underwood, The Attorney-Client and Work Product Privileges: The Case for Protecting Internal Investigations on the University Campus, 90 Ky. L.J. 531 (2001/2002). The author addresses the issue that during many internal university investigations, records are not sealed or kept confidential. Instead, a plaintiff may have access to letters, communications and legal work product during the time of the investigation. The author believes that this information should remain privileged in the university internal investigation setting.

Notes & Comments

Affirmative Action in Higher Education: Federal Circuit Court Split Over Bakke's Diversity Rationale, 36 U.C. Davis L. Rev. 505 (2003). This note provides an analysis of post-Bakke rulings and propounds an argument in favor of considering diversity as a compelling government interest.

Bilingual Education and Resegregation: Reconciling the Apparent Paradox Between Bilingual Education Programs and Desegregation Goals, 7 UCLA Asian Pac. Am. L.J. 88 (Spring 2001). The author addresses the issue of bilingual education and its effects on potential segregation in schools. When allowing bilingual education, the author asks schools to monitor and maximize integration time, involve students in the integration process and make an ideological commitment to desegregation and bilingual education.

The Diversity and Remedial Interests in University Admissions Programs, 91 Ky. L.J. 255 (2002-2003). The author notes the benefits of race-based admissions programs to the educational environment and concludes the practice is constitutional.

Girls in Sports: Love of the Game Must Begin at an Early Age to Achieve Equality, 12 Seton Hall J. Sports L. 281 (2002). Since the passage of Title IX, women have been guaranteed equality within sports programs in public schools. The author addresses a Kentucky civil rights case in which female softball players sued because they were denied an amount of college scholarships equal to male fast-pitch baseball players.

Least Restrictive Environments: Assessing Classroom Placement of Students with Disabilities Under the IDEA, 77 Wash. L. Rev. 809 (2002). This comment analyzes the different tests courts use to decide whether school districts have complied with the IDEA provision requiring the "least restrictive environment" for students with special education needs.

Making Kids Toe the Line in the Old Line State: The Disparate Application of Public School Discipline Policies in Maryland, 11 Am. U. J. Gender Soc. Pol'y & L. 175 (2002). Considering the wide array of punishments utilized in the school setting, the author explains why Maryland should keep access to education and fairness as the guiding factors of its new policies.

Missing the Point: Befuddled by Bakke, Most Courts Fail to Challenge the Problematic Proxy Fostered by Justice Powell 's Diversity Rationale, 37 Wake Forest L. Rev. 1113 (2002). In Bakke, the Supreme Court determined that it is unconstitutional to use racial quotas in medical school admissions. The author examines the impact of using race conscious fac-tors in determining admissions to schools and potentially complex problems that may result.

Not Separate but Not Equal: How Should the United States Address its International Obligations to Eradicate Racial Discrimination in the Public Education System, 21 Penn. St. Int'l L. Rev. 205 (2002). Many treaties and conventions have been enacted to stop racial discrimination in schools. The author explores these treaties and the possible solutions to end racial discrimination in schools.

Promoting Racial Equality Through Equal Educational Opportunity: The Case for Progressive School-Choice, 2002 BYU Educ. & L.J. 53 (2002). The current educational system perpetuates racial inequality and inadequate education for the poor. The author argues for a "progressive" school choice program that allows vouchers for those in need but avoids the constitutional problems of similar programs.

Providing Equal Educational Opportunities: Title IX and Indian Tribal School, 69 U. Chi. L. Rev. 1271 (Summer 2002). The federal government has an obligation to provide education to Indian tribal students. The author believes that because the government pays for tribal education, it is subject to Title IX rules and therefore is not immune from law-suits that claim violations of Title IX principles.

Religious Liberty in Public Schools: Do Students Shed Their Constitutional Rights at the Schoolhouse Gate?, 15 Regent U. L. Rev. 129 (2002-2003). The author demonstrates how both sides of the "religion in public schools" debate claim to protect and espouse the intent behind the religion clauses of the First Amendment.

Student-Athletes Must Find New Ways to Pierce the NCAA's Legal Armor, 12 Seton Hall J. Sports L. 243 (2002). The author analyzes the NCAA 's minimum requirements for its athletes' SAT scores and GPAs. There is some question as to whether these requirements disproportionately impact African American students and thus result in constitutional violations. The author explores the issue of whether a private right of action should be allowed for these athletes to sue the NCAA for Title IV violations.

Casenotes

Torts-Negligent Misrepresentation - High School Guidance Counselors can be held Liable When Their Erroneous Advice Prevents a Student-Athlete from Obtaining an Athletic Scholarship-Sain v. Cedar Rapids Community School District, 626 N.W.2d 115 (Iowa 2001), 12 Seton Hall J. Sport L. 311 (2002). The author evaluates the Sain decision and decides that courts are an improper venue to resolve disputes between guidance counselors and students.

An Attempt to Pick up the Fallen Bricks of the Wall Separating Church and State After Santa Fe v. Doe, 67 Brook L. Rev. 1291 (2002). Santa Fe did not provide clear guidance for lower courts attempting to resolve issues of student prayer, but the article proposes a test to be used in these situations.

Symposia

The Louis L. Redding Civil Rights Symposium, 9 Widener L. Symp. J. 1-221 (2002). Irving Morris, The Role of Delaware Lawyers in the Desegregation of Delaware's Public Schools: a Memoir, Leland Ware, Race and Urban Space: Hypersegregated Housing Patterns and the Failure of School Desegregation; Wendy Brown Scott, The Miseducation of White America; Jeffrey A. Raffel, After the Court Order: The Changing Faces of School Desegregation in the Wilmington Metropolitan Area; Marshalita and Melva L. Sims-Peterson, From Risk to Promise: Changing the Education Contract for Poor Children and Children of Color; Robert L. Hayman, Jr., Neutral Principles and the Resegregation Decisions; Jamie A. Scaringi, The Delaware Tug-Of-War Over School Desegregation: Constitutional Case Law v. Legislative & Administrative Actions; Barri A. Orlow, Fifty Years After Brown v. Board of Education: Resegregation of America's Public Schools; Robert M. Greenberg, Equal Protection Challenges to Court Mandated Affirmative Action Policies in Public Schools: Has the Pendulum Swung Too Far in the Other Direction?

The legal literature reported is all the educational related literature recorded in THE CURRENT INDEX TO LEGAL PERIODICALS in the months of December of 2002 and January and February of 2003.