Education Law

9 posts

Indigeneity in the Classroom: Avenues for Native American Students to Challenge Anti-Critical Race Theory Laws

Volume 57, Issue 3

By Alex H. Serrurier

Native American students in public schools face barriers to educational achievement due to racism, prejudice, and ignorance from fellow students, teachers, and administrators.  Native students have endured various forms of discrimination that range from forcible cutting of braids by peers to administrative bans on traditional regalia at graduation ceremonies.  In addition to experiencing overt acts of racism, Native students often feel disengaged from school due to the negative or non-existent portrayals of their tribal heritage in classroom curricula.  Literature suggests that much of the gap in educational outcomes between Native students and their white peers could be mitigated through the incorporation of appropriate curricular materials on Indigenous history and culture, leading numerous states to pass laws requiring such programs to be developed and implemented in classrooms.  In contrast, other states have proposed or passed legislation restricting the manner in which educators may discuss race, gender, and systemic inequality.  These “anti-critical race theory” laws have the potential to chill or directly inhibit much-needed teaching of Native American culture and history in public school classrooms through both minimizing conversations about historical white supremacy and racism against Native Americans and limiting the visibility of Native figures and culture in public school curricula.

This Note proposes that Native students attending public schools in states that have passed anti-critical race theory legislation may be able to seek judicial relief from such laws.  The Note will examine potential claims under the Fourteenth Amendment to the U.S. Constitution and, depending on where the students live, their respective state constitutions.  Part I provides background on the importance of culturally competent education for Native students.  Part II discusses the chilling effect that bills banning discussion of systemic inequality or race-related topics have on ethnic studies programs, the specific barriers that they raise to teaching Native culture and history, and the ensuing harm caused to Native students.  Part III examines potential avenues for judicial relief.

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A Necessary Recalibration: Why the Ministerial Exception’s Bar on Whistleblower Actions Harms Teachers and Students

Volume 57, Issue 3

By Christopher Morillo

The “ministerial exception” is a First Amendment shield for religious institutions facing employment-related lawsuits.  The Catholic Church, for example, might invoke the exception if sued by a woman barred from joining the priesthood on account of her sex.  In recent years, however, the Supreme Court has “vertically” expanded the scope of the exception down the hierarchy of a religious institution, holding that it bars actions brought not only by traditional “ministers,” but also by teachers and other employees at religious schools—many of whom do not hold religious office or formally preach to students.  This Note argues that this vertical expansion (i.e., the broadened conception of “minister”) warrants a “horizontal” restriction on the types of claims that the exception bars.  Namely, whistleblower actions should not be categorically barred by the now-bloated ministerial exception.  As the law stands, over a hundred thousand secular teachers are left in a precarious double bind in which they must act as mandatory reporters for child abuse and yet lack protection from any consequent retaliation for whistleblowing.

Part I of this Note provides an overview of the ministerial exception and its recent expansion, including how lower courts have been handling whistleblower claims.  Part II theorizes that the broadening of the ministerial exception, and the underlying First Amendment right of church autonomy, should trigger a proportionality approach that constrains the exception based on competing government interests.  Part III applies this proportionality approach in the context of whistleblower cases, arguing that whistleblower actions are distinct from other applications of the ministerial exception in the way they implicate third parties—often children—and with respect to the unique societal interests in protecting those third parties.

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State Constitutions and Systemic Gaps in Music Education Access

The Common Law Volume 57, Issue 1

By Corey Whitt

“The proliferation of music education in schools throughout the United States is an apparent success.  However, its application is not evenly spread across the country.  Students living in poverty are most often those who are left unable to enjoy its advantages.  Further, the disparities increase along racial lines.  The reality is that low-income students of color are more likely to forgo a music education than their affluent, white peers.

As demonstrated in cases leading into the twenty-first century, state courts can play a role in bridging the socio-economic divide of music education access.  Where state courts chose to define the minimum quality of education prescribed by their state constitutions, music experiences were acknowledged.  A modern, successful advocacy strategy, however, will likely deviate from litigation in favor of ballot measure proposals to secure a music education for all students given the inherent risk of establishing harmful legal precedent.  Through the patchwork of state ballot measures, the American electorate can promote meaningful music education experiences for all students—not only the wealthy, white children.”

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Charter School Jurisprudence and the Democratic Ideal

Issues Volume 50, Issue 1

By Tara Raam

This Note will explore the implications of recent charter school legislation on democratic principles in the context of public education. In 2015, the Washington Supreme Court held, in League of Women Voters of Washington v. State, that charter schools are not “common schools.” Thus, the court proscribed the application of state funds designated for “common schools” towards supporting charter schools. Part II provides background on the development of charter schools and describes the Washington Supreme Court’s decision in League of Women Voters, particularly the Court’s reliance on its 1909 interpretation of the Washington constitution’s “common schools” principle in School District No. 20 v. Bryan, as well as the legislative response to League of Women Voters and subsequent lawsuit. Part III argues that evolving views of school governance necessitate a reading of the Bryan requirements that is more sensitive to the democratic ideals of participation, deliberation, and accountability underlying Bryan. Recognizing the League of Women Voters interpretation of Bryan as the only appropriate means of voter control of public schools would have harmful and far-reaching effects not contemplated by the Bryan court on public schools across the United States. Part IV challenges whether a system of state-authorized charter schools can achieve the democratic ideal, and ultimately offers a portfolio of school options as one possible democratic solution.

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Least Restrained Environment: Amending the IDEA to Require Positive Behavioral Interventions and Supports in IEPs

Issues Volume 52, Issue 2

By Helin Azizoglu

Students with disabilities are disproportionately restrained and secluded in schools. Though sometimes these practices are employed as necessary safety measures to de-escalate a behavioral crisis and protect students and staff from injury, they are prone to abusive or unsafe implementation, especially when performed by untrained or inadequately trained staff. In recent years, research has emerged illuminating the risks associated with these practices, which can lead to injury or death when performed improperly.

There is currently no federal legislative or regulatory framework in place addressing the practice of restraint and seclusion in schools, and state practices vary widely. As such, this Note proposes amending the Individuals with Disabilities Education Act, the statute governing the rights of students with disabilities, to affirmatively require the inclusion of positive behavioral interventions and supports in individualized education plans. Additionally, this Note proposes recommendations to bolster protections for students with disabilities at the state level.

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Whiter and Wealthier: “Local Control” Hinders Desegregation by Permitting School District Secessions

Issues Volume 52, Issue 1

By Meaghan E. Brennan

When a school district is placed under a desegregation order, it is to be monitored by the district court that placed the order until the district is declared unitary. Many school districts have been under desegregation orders since shortly after Brown v. Board, but have failed to desegregate. Even when a school district is making an honest attempt, fulfilling a desegregation order is difficult. These attempts can be further complicated when a racially-identifiable set of schools secedes from the district. Such school district disaggregations make traditional desegregation remedies more difficult by further isolating children of different races.

In the past few decades, dozens of school districts have seceded to create wealthy districts filled with white children adjacent to poorer districts with children of color. This Note argues that school district secessions harm desegregation efforts and, in turn, the educational achievement of students in those districts. Two school districts — one in Jefferson County, Alabama and another in Hamilton County, Tennessee — serve as examples of how secession movements arise and how the conversations progress. Secession proponents often advocate for increased “local control” — seemingly innocuous rhetoric that serves as a guise for racism and other prejudice.

This Note argues that school district disaggregation is made far too easy by judicial preoccupation with local control and by the moralpolitical failure of state legislatures. But it is possible to discourage segregative school district disaggregation by reworking the concept of local control so that it prioritizes all children, and by adopting state legislation that promotes consolidated, efficient school districts.

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Invisible Victims: Combatting the Consequences of the College Admissions Scandal for Learning-Disabled Students

Issues Volume 54, Issue 3

By Susannah G. Price

In a recent college admissions bribery scheme, a network of wealthy parents paid entrance exam proctors, admissions insiders, and medical providers to rig the system that enables students with disabilities to receive testing accommodations. By purchasing false disability diagnoses, these parents procured testing accommodations and facilitated cheating on standardized tests — all in an effort to gain admission to top-tier universities. As a result, disability rights advocates fear a backlash against students with legitimate needs for disability accommodations in the college admissions process.

The purposes of this Note are to explore the practical consequences of the scandal for students with learning disabilities and to present a legal framework for preserving disability rights. This Note proposes: (1) adopting a purposive statutory interpretation of the Americans with Disabilities Act (ADA) as amended in 2008 to ensure that the rights of learning-disabled students are not violated; and (2) implementing this interpretation through legislative and regulatory amendments as well as judicial construction. The Note begins with a summary of the college admissions scandal and its exploitation of disability accommodations. Part II examines the legislative framework and case law that govern testing accommodations, including the ADA and its 2008 amendments (ADAAA). Part III outlines the trend of treating prior receipt of accommodations as a quasi-prerequisite for future accommodations, and how this trend discriminates against disabled students with recent diagnoses. Part III also details how the emphasis on prior receipt of accommodations is contrary to the purpose of the ADAAA and proposes adopting a purposive statutory and regulatory interpretation to ensure that first-time applicants for accommodations are not unduly penalized. Part IV identifies concrete methods to implement this interpretation and adequately safeguard the rights of learning-disabled students, including legislative amendment of 42 U.S.C. § 12102, regulatory amendment of 28 C.F.R. § 36.309, and corresponding judicial construction.

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Out of Sight, Out of Mind: Rural Special Education and the Limitations of the IDEA

Issues Volume 54, Issue 1

By Lydia Turnage

In 1975, the Individuals with Disabilities Education Act (IDEA) established a substantive right to “free appropriate public education” (FAPE) for children with special needs. Since that time, the right to FAPE has primarily been defined by — and enforced through — the IDEA’s robust set of procedural safeguards and avenues for private enforcement. However, the Act’s emphasis on procedure over substance has prevented the realization of meaningful educational programming for a significant number of special needs students. This Note illustrates the fundamental tension between the IDEA’s substantive and procedural goals by contrasting the legislative and judicial vision of the IDEA with the current state of special education in rural public schools.

Part II gives a general overview of frameworks for policy implementation. Part III provides a background in the evolution of special education law, with a focus on the role that courts have played in the development of special education policy. Part IV argues against the IDEA’s proceduralist approach by demonstrating how this approach fails to account for the challenges faced by rural students at every stage of the special education process, including eligibility for special education, the formulation and enforcement of individualized education plans, and the provision of feasible alternatives to students’ initial public school placement. Finally, Part V argues that the current framework for the provision of special education should be modified to include more effective means for enforcing students’ rights and should incorporate the “inclusive schools” approach, which allows for a more substantive, collaborative, and holistic approach to providing FAPE.

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He/She/They “Say Gay”: A First Amendment Framework for Regulating Classroom Speech on Gender and Sexuality

Issues Volume 57, Issue 1

By Zachary A. Kayal

In an era of profound polarization over the nature of gender and sexuality, and children’s exposure to discussions thereof, states and school boards of all political inclinations are moving swiftly to regulate educators’ speech about such topics in public classrooms. Liberal authorities enact “pronoun policies” requiring teachers to use transgender and non-binary students’ gender-affirming names and pronouns. Conservative authorities, meanwhile, largely prohibit teachers from talking about gender and sexuality through anti-queer curriculum (or “Don’t Say Gay”) laws. Despite their opposing goals, these policies seem constitutionally indistinguishable on their face—both are regulations of educators’ classroom speech, subject to the same First Amendment standards.

This Note argues that constitutional lines can and should be drawn between these policies based on the effect of the regulated speech on third parties. Part I reviews the First Amendment standards that could apply to pronoun policies and anti-queer curriculum laws. Part II argues that these types of policies regulating educators’ classroom speech can be distinguished from one another using an egalitarian framework, which accounts for the impact of the regulated speech on students’ expression and the overall expressive environment of the classroom. Though First Amendment jurisprudence usually forecloses such arguments about third-party expressive interests, the standards governing classroom speech uniquely allow for their consideration. Part III applies that egalitarian framework to the two kinds of policies at issue. It posits that the negative effects of misgendering—chilling the protected expression of transgender students and poisoning the classroom speech environment—justify pronoun policies. But anti-queer curriculum laws regulate speech that poses no such risks, so they violate the First Amendment.

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