Law Review Digests-Primary and Secondary Education

Articles

Thomas C. Berg, Vouchers and Religious Schools: The New Constitutional Questions, 72 U. Cin. L. Rev. 151 (2003). Zelman v. Simmons-Harris, the "vouchers case,"

KyIe Duncan, Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003). This article discusses state Blaine Amendments, which limit individuals' and organizations' rights to receive government-sponsored benefits because of certain religious affiliations. The article concludes that the amendments typically violate the Constitution's Establishment Clause.

Cecil C. Kuhne, School Voucher Programs: Has the Supreme Court Pulled Up the Gangplank to Establishment Clause Challenges?, 35 St. Mary's LJ. 379 (2004). This essay examines an Ohio program allowing school vouchers. The author explores the heritage of this private choice doctrine through landmark judicial developments. The author concludes that the Supreme Court decision in Zelman all but eliminates the possibility for successful Establishment Clause challenges in the future regarding such plans.

David R. Matthews, Lessons from Lake View: Some Questions and Answers from Lake View School District No, 25 v. Huckabee, 56 Ark. L. Rev. 519 (2003). This article discusses the history of an Arkansas lawsuit brought by school officials and residents of Phillips County, Arkansas against the Governor of Arkansas. This suit challenged the funding of the public school system and questioned the system's constitutionality under the Arkansas Constitution. The court looked at both the adequacy and the equality of the system enacted by the Arkansas legislation. The author provides the criteria that were found to be critical to an adequate system by the Arkansas legislature, as well as definitions of equality that reach beyond merely providing the same dollar figure per student. The author concludes that if the Arkansas legislature fails to create a system that provides both adequate and equitable education, the consequences will have greater impact than any other current legislation.

Dan Mbulu, First Amendment: Extending Equal Access to Elementary Education in the Aftermath of Good News Club v. Milford Central School, 16 Regent U. L. Rev. 91 (2003-2004). In this article, the author examines several United States Supreme Court cases involving religious activities in the school setting. The author specifically looks at the decision in Good News Club v. Milford Central School and the ramifications of this decision.

Michael Pinard, From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities, 45 Ariz. L. Rev. 1067 (2003). The author provides a history of cases addressing the search of students in schools. The issue of police officers searching students and the various treatments by lower courts to weigh the Fourth Amendment rights of students is analyzed. The author suggests that courts often treat searches of students in schools conducted by police officers as they would searches conducted by school personnel themselves. Further, the problems of a lower probable cause standard utilized by the courts in these situations combined with increased use of law enforcement by schools are analyzed. The author recommends that, although use of police officers to conduct searches will be necessary to detect criminal activity at schools, the courts should use the higher standard of probable cause in reviewing those searches for Fourth Amendment violations.

Daria Roithmayr, Locked in Inequality: The Persistence of Discrimination, 9 Mich J. Race and Law 31 (2003). The author discusses the idea that public school fees contribute to "locked-in" discrimination that is nearly impossible to remedy. This discrimination is difficult to remedy, first, because of the exceeding high costs of doing so, and, second, because it is difficult to trace the discrimination back to a central source that is doing so intentionally.

Notes and Comments

A Civics Action: Interpreting "Adequacy" in State Constitutions' Education Clauses, 78 N.Y.U. L. Rev. 2241 (December 2003). The author of this note is seeking an appropriate definition for "adequacy" as it applies to state constitutions' education clauses. To establish a suitable definition, the author suggests that state courts should look at history and national education procedures. If state courts take this approach, the students of today will become active and well-informed citizens of tomorrow.

Blaine's Bigotry: Preventing School Vouchers in Oklahoma . . . Temporarily, 39 Tulsa L. Rev. 207 (2003). The author's focus in this comment is the impending implementation of a school voucher system in Oklahoma. he addresses the case law surrounding the subject and discusses the opposing arguments of this contentious issue. he concludes with suggestions and predictions of its outcome.

Does New Jersey 's Solution to its Education Crisis Run Afoul of the United States Constitution?, 6 U. Pa. J. Const. L. 328 (2003). The author analyzes New Jersey's educational funding reform, providing a history of school funding in that state. Various state and Supreme Court cases are reviewed and compared to assess the development of funding programs. The author suggests that the New Jersey Whole-School Reform system overly regulates private school programs and ultimately substitutes government-run programs for those which were previously privately controlled.

Encouraging Litigation at the Expense of our Children: The Inapplicability of Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources to the Individuals With Disabilities Education Act, 76 Temp. L. Rev. 381 (2003). The author provides an overview of the Individuals with Disabilities Education Act (IDEA), as well as how individuals bringing suit have been able to recover attorney fees. This comment explains that, historically, if the lawsuit was the catalyst for some sort of beneficial resolution for the individual, the courts would award that person attorney fees. However, the author describes new cases which have changed the standard for receiving attorney fees under the IDEA and suggests that individuals must now prevail in the court action to obtain attorney fee awards. The author concludes that the intent of the IDEA suggests that Congress expected individuals to be awarded attorney fees when the lawsuit initiates a settlement and suggests that courts should not follow the Buckhannon decision.

Eradicating Blaine's Legacy of Hate: Removing the Barrier to State Funding of Religious Education, 52 Cath. U. L. Rev. 1041 (Summer 2003). The author of this comment argues that despite the fact that Zelman v. Simmons-Harris has somewhat changed the view of separation between church and state in the educational realm, the legacy nonetheless continues in the states under their Blaine amendments. The author concludes that notwithstanding the Blaine amendments' continuing enforcement, school choice programs should not be hindered.

Fees for Extracurricular Activities Alienate Students Who Would Otherwise Participate and Should be Replaced with Alternative Means of Fundraising, Seton Hall J. Sport L. 239 (2003). This comment considers the problem of requiring payment to participate in some extracurricular activities. The author concedes that case law has held these activities to be privileges, not rights. However, the author concludes that alternatives to requiring students to pay are available and should be explored by each school district.

Homework Assignment: The Proper Interpretation of the Standard for Institutional Liability if We are to Protect Students in cases of Sexual Harassment by Teachers, 33 Sw. U. L. Rev. 95 (2003). This comment examines the issue of sexual harassment in the school setting. The author analyzes the psychological ramifications for the victims, and the emotional issues that occur when litigation is commenced. The author examines the Supreme Court case Gebser v. Lago Vista Independent Sch. Dist., the most recent case involving sexual harassment in the school setting. The author concludes that the standard outlined in Gebser is workable, and if applied correctly by lower courts, will work to fight against sexual harassment in our schools.

One Nation, Without God?-A Note on the Ninth Circuit's Decision in Newdow v. United States Congress Holding That Reciting the Pledge of Allegiance in Public Schools Violates the Establishment Clause and Therefore Unconstitutional, 33 Sw. U. L. Rev. 119 (2003). The author provides a history of the origins and changes to the Pledge of Allegiance. The author analyzes a recent case involving the father of a California public school student claiming that the words "under God" in the Pledge of Allegiance violate the separation of church and state mandated by the United States Constitution. The tests previously used by the Supreme Court to assess violations of the separation requirement are provided. The author suggests that the Ninth Circuit has partnered with the father in promoting activism that defies prior Supreme Court indications regarding the separation of church and state.

Kaleidoscope Consent Decrees: School Desegregation and Prison Reform Consent After the Prison Litigation Reform Act (PLRA) and Freeman-Dowell, 2003 B.Y.U. L. Rev. 1333 (2003). This Comment discusses conflicting portions of traditional consent decrees versus new consent decrees. The author argues the PLRA has made it easier to modify and terminate consent decrees, thus, making it more of a judicial decree than a hybrid between judicial order and a settlement offer. Because of these changes, fewer people will be willing to enter into these consent decrees.

Pennsylvania's Act 46: Aimed at Improving Education or Punishing Educators?, 5 U. Pa. J. Lab. & Emp. L. 611 (2003). The author analyzes the Pennsylvania Legislature's enactment of Act 46 and Act 83. A history of the collective bargaining system and previous Pennsylvania legislation is provided. The author explains that currently, Act 46 only applies to Philadelphia as the only city in Pennsylvania qualified as a first class city. This comment suggests that the ability of a teacher to bargain collectively in the Philadelphia school system could be dramatically limited by Act 46. Several suits challenging the constitutionality of Act 46 are outlined and the author suggests that the courts may ultimately determine if the legislature has gone too far with Act 46.

Privacy Changes, Precedent Doesn 't: Why Board of Education v. Earls Was judged by the Wrong Standard, 40 Hous. L. Rev. 1183 (2003). The focus of this note is the Supreme Court decision allowing for random and suspicionless drug testing of middle and high school students participating in extracurricular activities. The author discusses the holding and it rationales, then talks about its implications. he concludes that the ruling has made the privacy protections in the Fourth Amendment meaningless.

Private Voucher Schools and the First Amendment Right to Discriminate, 113 Yale LJ. 743 (December 2003). In this note the author analyzes the Supreme Court's decision in Zelman v. Simmons-Harris and questions whether the decision allows states to require private voucher schools (including religious schools) to abide by current antidiscrimination laws or whether it would be a violation of First Amendment rights. After investigating case precedent, the Free Speech Clause, the Free Exercise Clause, and the Establishment Clause, the author concludes that anti-discrimination laws can survive a First Amendment challenge by private voucher schools.

Reading, Writing, and Rights: Who Should Own Charter School Curricula?, 5 Minn. Intell. Prop. Rev. 123 (2003). This note begins by giving a brief overview of particular elements of intellectual property law. It then discusses the private company ownership of charter school curricula, including certain public policy arguments, and the relationship and needs of the public school districts and the private companies.

Teachers' Speech Rights in the Classroom: An Analysis of Cockrel v. Shelby Co. Sch. Dist., 71 U. Cin. L. Rev. 1471 (2003). The author analyses the differing approaches of the courts in balancing the First Amendment rights of teachers to express ideas in the classroom with school administrators' desire to choose curriculum. Three Supreme Court cases on this subject are analyzed as well as the differing views of lower courts throughout the country. A new test for the courts to use in analyzing teacher speech in the classroom is suggested by the author. This note concludes that the exchange of ideas in the classroom is an important part of the educational process that should be carefully balanced by the courts with the administrative right to choose curriculum.

The TEACH Act: Copyright Law and Online Education, 78 N.Y.U. L. Rev. 2204 (December 2003). The author of this note analyzes the Technology Education and Copyright Harmonization Act (TEACH Act). The author argues that the legislation lacks clarity in some areas, which may hinder its usage by educational institutions. In this note, the author poses some solutions to some of the problems with the TEACH Act, and she concludes that despite some of its problems, the TEACH Act is, overall, good legislation and should be readily used by teachers.

Tiny Glimmer of Hope for Student Athletes Affected by Suspicionless Drug Testing Policies Rest in the States, 13 Seton Hall J. Sport L. 261 (2003). This article discusses the Supreme Court jurisprudence facilitating suspicionless drug testing of high school students wishing to participate in extracurricular activities. The author disagrees with the holding and asserts that students' only hope may be through their respective state supreme courts.

Zelman's Evolving Legacy: Selective Funding of secular Private Schools in State School Choice Programs, 89 Va. L. Rev. 1953 (2003). This note discusses the flurry of cases arising from the Zelman v. Simmons-Harris decision, including challenges to three other state voucher programs. It focuses on state constitutionalism, the First Amendment, and the Constitution's Establishment and Free Exercise Clauses.

Symposia

Aligning or Maligning? Getting Inside a New Idea, Getting Behind No Child Left Behind and Getting Outside of It All, 15 Hastings Women's LJ. 1 (2004). This symposium is centered on issues surrounding the education of those children with special needs. It discusses how both the Improving Education Results for Children with Disabilities Act and No Child Left Behind Act of 2001 have changed the landscape. The author provides insight for successfully navigating some complex issues in the field.

The Quest for Equal Educational Opportunity: Brown Nears 50, San Antonio Turns 30, 52 Am. U. L. Rev. 1339 (2003). The motivation behind this symposium was to evaluate and discuss two of the landmark cases in America dealing with desegregation in schools. The symposium addresses several of the recent developments in the struggle for desegregation and asserts that much is left to be done after the 1954 milestone.

The Voice of the Unheard: An Evaluation of and Proposed Solution to the Special Educational Needs of Hearing Children of Deaf Parents, 15 Hastings Women's LJ. 137 (2004). The focus here is on the unique developmental needs of hearing children with deaf parents. The author outlines some of the particular problems characteristic of these children and provides insight into the necessity of early state intervention. The author further argues that it is a vital state interest to ensure that these children receive equal opportunities.