law review digests-

Law Review Digests-

ARTICLES, NOTES AND COMMENTARY

Primary & Secondary Education

Articles

Paul M. Anderson, The Supreme Court Sets the Standard: Drug Testing at the Interscholastic Level, 4 Tex. Rev. Ent. & Sports L. 1 (2003). The author explains the concepts of search and seizure in a public school setting. The article gives an overview of the standards the Supreme Court has created relating to those issues, including the special needs test and the reasonableness balancing test. The drug testing of student athletes is analyzed and compared to the drug testing of students involved in extracurricular activities. The author proposes that the possibility exists for school-wide drug testing in the future.

Francis J. Beckwith, Science and Religion Twenty Years After McClean v. Arkansas: Evolution, Public Education, and the New Challenge of Intelligent Design, 26 Harv. J.L. & Pub. Policy 455 (2003). This article is an analysis of the constitutional concerns in teaching creationism, evolution, and inte11igent design to public school students. The author explains each theory and outlines the cases that have dealt with these areas of teaching. The author also gives an extensive review of the types of scientific research that support the intelligent design theory. This article proposes that intelligent design theory provides an opportunity through proven scientific methods to teach scientific theory that differs from evolution without violating constitutional rights.

Eric Blumenson and Eva S. Nilsen, One Strike and You're Out? Constitutional Constraints on Zero Tolerance in Public Education, 81 Wash. U.L.Q. 65 (2003). Zero tolerance policies impose suspension and even expulsion for misbehavior that would traditionally have been dealt with through lesser sanctions such as counseling and detention. The authors discuss the role of zero tolerance as a school policy and explore whether the Constitution limits the use of this policy. The discussion focuses on whether such policies deny students a free and appropriate

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public education. They come to the conclusion that it is immoral to prevent a child from obtaining an education, one of the basic tools needed for survival.

Allen M. Brabender, The Crumbling Wall and Free Competition: Formula for Success in America's Schools, 79 N.D. L. Rev. 11 (2003). This article examines the Establishment Clause in the First Amendment to determine the constitutionality of school voucher programs in innercity public schools. The Establishment Clause states that Congress cannot make laws establishing a religion. Based upon the push to promote competition and choice in education, states are now allowing students in failing public schools to use the vouchers at any qualifying school, including private schools. A conflict occurs because a large number of private schools are affiliated with a particular religion. The author concludes that, in light of recent Supreme Court decisions that support education programs that are religion neutral, the vouchers are constitutional.

Eric A. DeGroff, State Regulation of Nonpublic Schools: Does the Tie Still Bind?, 2003 B.Y.U. Educ. & L.J. 363 (2003). The article explains that state regulatory schemes involve a combination of social and political forces. It includes a discussion of current regulatory schemes and determines whether a real choice is available in nonpublic schools. The author also discusses how actual levels of regulation have evolved over time.

Todd A. DeMitchell and Casey D . Cobb, Policy Responses to Violence ln Our Schools: An Exploration of Security as a Fundamental Value, 2003 B.Y.U. Educ. & L.J. 459 (2003). This article discusses how the public school system responded to the need for heightened security and explores the possibility that security has become the prevalent factor in today's educational policy making.

Todd A. DeMitchell and Terri A. DeMitchell, Statutes and Standards: Has the Door to Educational Malpractice Been Opened?, 2003 B.Y.U. Educ. & L.J . 485 (2003). The authors discuss the issue of educational malpractice claims in response to failing schools and teachers. They focus on the theory of negligence in malpractice suits, California Proposition 277, and the future of educational malpractice litigation.

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Preston C. Green & Bruce D. Baker, Circumventing Rodriguez: Can Plaintiffs Use the Equal Protection Clause to Challenge School Finance Disparities Caused By Inequitable State Distribution Policies?, 7 Tex. F. on C.L. & C.R. 141 (2003). In 1973, the Supreme Court used the rational basis test in San Antonio Independent School District v. Rodriguez to determine that property tax-based funding disparities between school districts did not violate the Equal Protection Clause of the Fourteenth Amendment. Since then, under Papasan v. Allain, the Supreme Court has concluded that Rodriguez does not preclude parties from challenging unequal state funding distribution policies. This article examines the history of these two cases and the impact they have on current attempts to resolve funding disparities between school districts. The authors conclude that the current legal challenges will most likely fail because the state funding policies are rationally related to legitimate government interests.

Michael Heise, Equal Educational Opportunity By the Numbers: The Warren Court's Empirical Legacy, 59 Wash. & Lee L. Rev. 1309 (Fall 2002). In this article the author discusses the Warren Court's contribution to the equal educational opportunity doctrine. The author asserts that the empiricization of the equal educational opportunity doctrine is the true legacy of the Warren Court. The author discusses his theory through the Supreme Court's decision in Brown v. Board of Education.

Scott F. Johnson, Reexamining Rowley: A New Focus in Special Education Law, 2003 B.Y.U. Educ. & L.J. 561 (2003). Bd. of Ed. v. Rowley stated that a "free and appropriate public education" must provide a student with "some educational benefit." The author applies the Rowley standard to the Individuals with Disabilities Education Act (IDEA), and concludes that the "some educational benefit" standard no longer meets the requirements of the IDEA.

Jay P. Lechner, Leaming from Experience: Why Racial Diversity Cannot be a Legally Compelling Interest in Elementary and Secondary Education, 32 Sw. U. L. Rev. 201 (2003). In this article the author argues that the need to achieve a diverse student body is not a significant compelling governmental interest under the Fourteenth Amendment. The author feels that continuing to use a race-based classification policy does more harm than good and fails to provide a remedy. The author con-


eludes that there are alternative ways to diversify public school curricula without infringing on the constitutional rights of students.

Ira C. Lupu & Robert W. Tuttle, Zelman 's Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev. 917 (2003). In Zelman v. Simmons-Harris, the Supreme Court decided that the Cleveland school voucher program did not violate the Establishment Clause of the U.S. Constitution which requires a separation of church and state. This article examines the Zelman decision and the impact it will have on relations between church and state. The authors view Zelman as the beginning of a battle over the proper limits on the use of state-funded vouchers in private education.

Ralph D. Mawdsley, Random Drug Testing for Extracurricular Activities: Has the Supreme Court Opened Pandora's Box for Public Schools?, 2003 B.Y.U. Educ. & L.J. 587 (2003). The author suggests ,.,---that the U.S. Supreme Court, in Bd. of Ed. v. Earls, opened a Pandora's · Box for drug testing in public schools. The article includes a discussion of drug testing approaches that various school districts have implement-ed. The author also examines the legal challenges and issues that arise from such testing and concludes that, although there are legal questions, it is still the best alternative to a drug epidemic.

Julie F. Mead, Devilish Details: Exploring Features of Charter School Statutes That Blur the Public/Private Distinction, 40 Harv. J. on Legis. 349 (2003). This article explains the development of charter schools since their inception in 1991. The author describes the process by which states create charter schools and the varying systems of accountability and autonomy. The financial, safety, and student performance standards are also analyzed and compared. Finally, the author provides a table that details the type of charter school, the number of states which permit that type, and the states that currently have those charters in their jurisdiction.

Paul T. O'Neill, High Stakes Testing Law and Litigation, 2003 B.Y.U. Educ. & L.J. 623 (2003). The article examines the use of high stakes testing to track student progress, to determine grade placement, and, ultimately, to decide who receives a high school diploma. The author discusses the general features of these high stakes tests as well as the federal laws creating them, the litigation involved, and the patterns that will help shape future tests.

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Meg Penrose, Shedding Rights, Shredding Rights: A Critical Examination of Students' Privacy Rights and the "Special Needs" Doctrine after Earls, 3 Nev. L.J. 411 (Winter 2002/2003). In this article, the author takes issue with the Supreme Court's decision in Board of Education of J.S.D. of Pottawatomie County, Oklahoma v. Earls. The author argues that public school students no longer have Fourth Amendment protection and their rights have been shed and shred at the schoolhouse gate. It is the author's conclusion that eventually all students will be subject to random suspicionless drug testing.

Sarah E. Redfield, Threats Made, Threats Posed School and Judicial Analysis in Need of Redirection, 2003 B.Y.U. Educ. & L.J. 663 (2003). This author examines how school shootings have traumatized the nation and how the public has felt the need to address this violence. She discusses the increased attention to threatening speech by relying on U.S. Supreme Court cases, lower federal court and state supreme court cases, as well as FBI and Department of Education research on threatening speech. The author concludes that the response to threatening speech lacks cohesion and neglects relevant data that could be used in detecting real threats.

Irene Merker Rosenberg, The Public Schools Have a "Special Need" for Their Student's Urine, 31 Hofstra L. Rev. 303 (2002). This article examines the recent erosions of privacy rights of children participating in extracurricular school activities. The Supreme Court has made several landmark decisions facilitating drug testing for junior high and high school students. The author criticizes the Court as having gone too far and calls for greater privacy protections.

C. Ashley Royal, Expanding the Scope of Suspicionless Drug Testing in Public Schools, 54 Mercer L. Rev. 1293 (2003). The author analyzes the Fourth Amendment's impact on public schools. A history of Supreme Court cases relating to drug testing in public schools is provided. That history includes an analysis of a recent case that expands a school's power to test students for drugs. The author explores the possibilities of future court cases and concludes that a policy of school-wide testing is not likely.

Sharon E. Rush, Emotional Segregation: Huckleberry Finn in the Modern Classroom, 36 U. Mich. J.L. Reform 305 (Winter 2003). The


author addresses the subject of emotional segregation. She explores this topic by focusing on the public school classroom and the teaching of the book Huckleberry Finn. It is the author's opinion that Huckleberry Finn is a racist book, and teachers choosing to use this book in their curriculum perpetuate a racist message to their students causing emotional segregation. The author concludes that Huckleberry Finn should not be taught in public school classrooms due to its negative connotations that can affect both white and black students.

Lewis D. Solomon, Edison Schools and the Privatization of K-12 Public Education: A Legal and Policy Analysis, 30 Fordham Urb. L.J. 1281 (2003). The author suggests that many American high school students are barely able to communicate, do simple mathematical computations, or discuss United States history. He explores the idea that a publicly held corporation can raise student achievement, retain talented teachers and administrators, and be profitable.

Thomas J. Sullivan & Richard L. Bitter, Abused Children, Schools, and the Affirmative Duty to Protect: How the DeShaney Decision Cast Children into a Constitutional Void, 13 Geo. Mason U. Civ. Rights L.J. 243 (2003). Under DeShaney v. Winnebago Co. Dept. of Soc. Serv. , the Supreme Court decided that unless the state caused a child to be abused, it does not have an affirmative duty to protect that abused child. The authors argue that this decision fails to give abused children a remedy against the state. They conclude that the Court failed to recognize that the Due Process and Equal Protection Clauses in the Fourteenth Amendment create an affirmative duty to protect children from harm.

Michael D. Waters, Alabama's Framework for Public Education-A Survey of the Education Provisions in Alabama's Constitution of 1901, 33 Cumb. L. Rev. 401 (2002-2003). The author's focus is on a comparison of constitutional structures as they apply to public education in the states. He examines several different approaches taken by states to address public education. The author also evaluates these structural issues as well as matters relating to funding and higher education.

Kevin G. Welner, Locking Up the Marketplace of Ideas and Locking Out School Reform: Courts' Imprudent Treatment of Controversial Teaching in Schools, 50 UCLA L. Rev. 959 (April 2003). In this article, the author talks about how teachers are criticized and disciplined for using innova-


tive yet controversial teaching methods in their classrooms. He reviews different court decisions and .concludes that courts favor a more narrow and traditional perspective when it comes to teachers' curricula in the classroom. The author suggests granting teachers more discretion in what they teach and giving them greater First Amendment protection. The author concludes by presenting his own ideas about how teacher speech cases should be handled.

Douglas Wilson, Neutrality and Evolution in Public Schools, 7 Tex. Rev. L. & Pol. 423 (Spring 2003). In this article the author discusses the teaching of evolution in public schools. The author argues that evolution should be considered history, rather than science, because history can be proven neither true nor false. The author advocates that evolution should not be taught in public schools because it can undermine religion and therefore violate the neutrality created by the Establishment Clause in the Constitution. The author concludes that the only two choices that are reconcilable with the Establishment Clause are to teach neither evolution nor creation or to teach both.

Perry A. Zerke1, The Statute of Limitations Under the Individuals with Disabilities Education Act: Is Montour Myopic?, 12 Widener L.J. 1 (2003). This article focuses on a recent Pennsylvania decision regarding the statute of limitations provision in the Individuals with Disabilities Education Act (IDEA). The author notes that there has been considerable confusion about how the statute of limitations should work with the IDEA. After discussing several interpretations, the author ultimately concludes that the Pennsylvania decision was wrong.

Notes and Comments

Administrative Law-Novel Question Before First Circuit Answered: Exhaustion of Individuals With Disabilities Education Act 's Administrative Process Requirement-Frazier v. Fairhaven Sch. Comm., 276 F.3d 52 (1st Cir. 2002), 36 Suffolk U. L. Rev. 925 (2003). This comment analyzes the First Circuit's decision in Frazier v. Fairhaven Sch. Comm. The court held that a person seeking money- damages for depriving a student of a free and appropriate education must first exhaust all administrative remedies under the Individuals with Disabilities Education Act (IDEA). In this case, the school determined that a student needed special education but did not advise the parents of their rights or

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provide the required educational plan. After the student graduated, the parents sued the school. They claimed the school deprived their daughter of a free education and they requested money damages. The author contends that Congress needs to clarify the language of the IDEA to prevent additional lawsuits and contradictory outcomes in other parts of the country.

Brown v. Armenti and the First Amendment Protection of Teachers and Professors in Grading Their Students, 97 Nw. U. L. Rev. 1471 (Spring 2003). In this note the author discusses whether teachers and professors are protected by the First Amendment when they distribute grades. The author compares and contrasts the holdings in Brown v. Armenti and Parate v. Isibor and notes the inconsistencies in the holdings. In Brown, the U.S. Court of Appeals for the Third Circuit held that grade issuance is not speech and is therefore not protected by the First Amendment. The Sixth Circuit in Parate held the exact opposite. A teacher's in-class grade speech is a topic yet to go before the Supreme Court. The author concludes that, until this issue is decided by the Supreme Court, inconsistent holdings among the various federal circuits will persist.

Buckhannon, Special Education Disputes, and Attorneys' Fees: Time for Congressional Response Again, 2003 B.Y.U. Educ. & L.J. 519 (2003). This article explores how Federal civil rights statutes that allow prevailing plaintiffs to recover attorneys' fees may affect lawsuits under the Individuals with Disabilities Education Act (IDEA). Buckhannon Bd. and Care Home, Inc. v. W Va. Dept. of Health and Human Resources defined a prevailing party as one who succeeds with more than a private settlement. The author argues that Buckhannon undermines the role of the IDEA fee-shifting provisions in enforcement of the IDEA. He concludes that fewer daims will be brought, resulting in fewer children attaining a fre.e and appropriate public education.

Changing American Schools: The Intersection of Choice and the Constitution, 22 Rev. Litig. 759 (2003). The focus here is on the use of voucher programs and parents' rights to choose successful schools. The debate concentrates on how states are implementing such programs to avoid Establishment Clause violations. The author speculates that there is still an unlawful entanglement between church and state.


Denial of the American Dream: The Plight of Undocumented High School Students Within the U.S. Educational System, 19 N.Y.L. Sch. J. Hum. Rts. 615 (2003). The author argues that the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) are bad policies because they deny most public benefits to undocumented immigrants. She concludes that the most effective remedy is for Congress to repeal both acts regarding access to higher education and undocumented immigrants.

Disabled School Children: Where are Their Advocates?, 23 J. Juv. L. 65-78 (2003). A history and background of the Individuals with Disabilities Education Act (IDEA) is provided. The author analyzes the requirements for compliance with the law, along with its definitions. The process of bringing a suit under the IDEA for various legal violations is outlined and several lawsuits are examined. The author concludes that financial costs hinder the IDEA from reaching all students in need and suggests much change is still needed.

The Ghost of Columbine and the Miranda Doctrine: Student Interrogations in a School Setting, 41 Brandeis L.J. 373 (2002). The author discusses how the Miranda doctrine affects the interrogation of students at school. Ultimately, the author concludes that there are other alternatives that could be implemented that would maintain safety and protect students' constitutional rights.

Good News Club v. Milford Central School: Viewpoint Discrimination or Endorsement of Religion?, 78 Notre Dame L. Rev. 833 (2003). Under Good News Club v. Milford Central School, the Supreme Court decided that this religious club was entitled to hold its meetings at a public school because the school allowed other groups in the community to use its facilities. The case turned on whether prohibiting a religious club from meeting on school grounds was a proper separation of church and state or whether it was improper discrimination against the group based on its religious views. The author contends that the court correctly determined that treating a religion neutrally is not the same as endorsing that religion.

Homeless Children Dream of College Too: The Struggle to Provide America's Homeless Youth with a Viable Education, 31 Hofstra L. Rev.


515 (2002). This note argues for continued funding for schools that have been created especially for homeless children. It discusses the problems these children face and asserts that these programs facilitate a free and appropriate education. The author also challenges a new law attempting to close such schools.

The Inadequacy of the IDEA in Assessing Mental Health for Adolescents: A Call for School-Based Mental Health, 6 DePaul J. Health Care L. 319 (2003). This three-part comment attempts to determine whether the current mandate that schools address mental health issues through special education programs is working. The author first looks at the identification and treatment of mental illness, the current approach and why it is not working, and finally the ways in which the current programs can be improved. The author concludes that using the current system results in diminished access to mental health treatment, incorrect diagnoses of mental health disorders, and inappropriate placements in special education classes.

Invisible Victims: Holding the Educational System Liable for Teen Dating Violence at School, 26 Harv. Women's L.J. 351 (2003). The author addresses the serious problem of teen dating violence and assesses schools' exposure to possible liability. She discusses the important role that schools play in developing· appropriate social behaviors. Finally, she posits that schools have a legal obligation to help prevent and remedy such violence and that the failure to do so does a great injustice to society as a whole.

Improving No Child Left Behind: Achieving Excellence and Equity in Partnership With the States, 55 Rutgers L. Rev. 239 (2002). This note analyzes the No Child Left Behind Act, addressing both the advantages and shortcomings of this federal education plan. The author also provides a review of various actions taken by the federal government and the courts that have had an impact on education. Further, the potential impact of the Act is assessed and the author proposes revisions to the plan that would better promote the goals of the Act.

ls the True Threat the Student or the School Board? Punishing · Threatening Student Expression, 88 Iowa L. Rev. 931, (2003). This note discusses disciplinary sanctions imposed against student expression that is deemed to be threatening. The author suggests a two-pronged test in


the analysis of student speech: a "true threat" analysis and a "material and substantial disruption" analysis.

Loose Lips Won't Sink Ships: Federal Education Rights to Privacy Act After Gonzaga v. Doe, 25 Campbell L. Rev. 201 (2003). The author recites the history of the Federal Education Rights to Privacy Act (FERPA). Further, the author analyzes the Supreme Court decision in which the court determined that there is no individual right to a financial remedy under the FERPA. The author suggests that this ruling has removed the force from this legislation, leaving public institutions free to violate the FERPA without significant consequences.

Out of Bounds: The United States Supreme Court Allows Suspicionless Drug Testing of Students Engaging in Extracurricular Activities, 42 Washburn L.J. 331 (2003). This comment examines the Supreme Court decision allowing drug testing of certain middle and high school students. The author also discusses the significant case law that preceded the ruling. She asserts that the holding was wrong and devotes considerable time to critiquing its reasoning.

Overcoming A Lawyer's Dogma: Examining Due Process for the "Disruptive Student," 36 U. Mich. J.L. Reform 457 (2003). This note explores the function of the due process hearing with regard to expelling students from school. The author discusses the evolution of the right to education and how the Due Process Clause in the Fourteenth Amendment is applicable. Traditionally, the due process hearing takes place before a student is expelled and it serves to ensure that the student is not deprived of his rights. The author contends that lawyers need to recognize that the due processing hearing is little more than a formality. The note ends with a call to change the mindset of the legal community and address due process concerns before students reach the expulsion stage.

Pay Now or Pay Later? California's Attempt to Legislate Undocumented Children out of a Public Education, 23 J. Juv. L. 41-51 (2003). There have been attempts in state courts such as Texas and California to deny public education to children of illegal aliens. This note provides an analysis of the federal cases regarding education for these children, the state legislation attempting to circumvent the federal holdings, and the


citizens groups that oppose such state laws. The author proposes that denying these children the benefit of education will not promote justice.

PDA, FMI.A, and Beyond: A Brief Look at Past, Present, and Future Sex Discrimination Laws and Their Effects on the Teaching Profession, 2003 B.Y.U. Educ. & L.J. 835 (2003). The author discusses the Pregnancy Discrimination Act of 1978. Specifically, this note analyzes the inadequacies that led to the shift from the equal treatment standard to the accommodation-based standard found in the FMLA. The author concludes by proposing changes to the FMLA.

Remembering the "Individuals" of the Individuals with Disabilities Education Act, 6 N.Y.U. J. Legis. & Pub. Policy 467 (2002-2003). A history of the Individuals with Disabilities Education Act (IDEA) is given along with an analysis of the intentions of the legislation in creating the IDEA. The author gives a history of federal court cases interpreting and regulating the application of the IDEA. The solution offered in this note is to remove the federal courts from the decision-making process and place it back in the hands of the most interested individuals: parents, teachers, and administrators.

The Right to Write? Free Expression Rights of Pennsylvania 's Creative Students After Columbine, 107 Dick. L. Rev. 891 (2003). This comment focuses on the conflict between free speech and school safety. The author examines recent incidents of violence and how schools are scrambling to find ways to allow creative works while attending to dangerous students. The author examines Pennsylvania's policy of red-flagging potential threats in student writing.

Rhode Island's Right to a Safe School: A Means to an End or an End Without Means, 8 Roger Williams U. L. Rev. 383 (2003). This comment analyzes a Rhode Island statute (modeled after a similar statute in California) that states that students and teachers have a right to attend safe schools. The author argues that the right to a safe school cannot be created and enforced without establishing legal standards to identify unsafe schools and adequate remedies to fix them.

School Privatization and Student Rights: A Comparison of Canadian and American Law Regarding Searches and Seizures Conducted in Privatized Schools, 34 U. Miami Inter-Am. L. Rev. 315 (2003). The

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author discusses Canada's approach to school privatization and teachers' classification as government agents/state actors or as private actors. He concludes the analysis by discussing whether the Canadian system would work in the American public school system.

Shuffl.ing the Deck: Redistricting to Promote a Quality Education in Virginia, 89 Va. L. Rev. 773 (2003). An overview of the Virginia public schools is analyzed based upon school accreditation tests. The author correlates the low-income areas to the poorly achieving schools and advises that children are grossly disadvantaged in the low-scoring districts. The solution presented is that only by redistricting can quick and sufficient progress be afforded to students in low-ranking schools.

The Silent Treatment: Perpetual In-School Suspension and the Education Rights of Students, 81 Tex. L. Rev. 1637 (May 2003). In this note the author discusses in-school suspension (ISS) and its educational effects on students. The author relates that students who are repeatedly assigned to ISS for a prolonged period of time academically fall behind their peers who receive in-class instruction. The author argues that the due process rights of students who regularly attend ISS are therefore infringed, and their fundamental right to receive a meaningful education is impacted. The author concludes that states must reform their educational discipline policies so that students will not be negatively affected.

The Supreme Court Reminds Us to Study Hard and Listen to Our Teachers: Owasso Public Schools v. Falvo, 30 S.U. L. Rev. 65 (2002). This note analyzes a recent Supreme Court decision regarding peer grading and privacy rights. The case was based on the Family Educational Rights and Privacy Act. The Court decided that such methods were constitutional. The author asserts that the holding was correct in giving teaching discretion back to schools.

Tattle Telling on the United States: School Violence and the International Blame Game, 21 Penn. St. Intl. L. Rev. 649 (2003). The author discusses the increasing incidents of school violence in the United States and how this is viewed internationally. The roles of parents, the media, and the juvenile justice system are analyzed. Various policies are assessed, including zero tolerance and the increased prosecution and punishment of young offenders. The author indicates that


there have been appropriate responses to school violence in the United States in an attempt to stop this trend.

What Foreign Students Fear: Homeland Security Measures and Closed Deportation Hearings, 2003 B.Y.U. Educ. & L.J. 815 (2003). This note discusses the Student Exchange Visitor Information System (SEVIS) and recent developments in enforcing student visas that are beyond SEVIS implementation.

Zellman v. Simmons-Harris: ls the Supreme Court's Latest Word on School Voucher Programs Really the Last Word?, 71 Fordham L. Rev. 2227 (2003). The comment examines the school voucher program recently implemented in Ohio. The author explores how the Establishment Clause has been interpreted in recent years and how those interpretations facilitated this ruling by the Court. She asserts that the decision ultimately left many questions unanswered that must be addressed.

Universities and Other Institutions of Higher Learning

Articles

Paul J. Batista & Michael Shaunessy, Invoking Sovereign Immunity to Protect Public University Athletic Departments and Administrators, 4 Tex. Rev. Ent. & Sports L. 83 (2003). The current state of immunity laws in Texas is reviewed along with several lawsuits from the past two decades. The Torts Claims Act enacted in Texas to provide an exception to the immunity laws is analyzed. The author concJudes that the current legislation provides for broad immunity for Texas institutions with only narrow exceptions provided by the Torts Claims Act.

Mary Ann Connell & Frederick G. Savage, Releases: ls there Still a Place for their Use by Colleges and Universities?, 29 J.C. & U.L. 579 (2003). In this article the authors question whether release forms used by colleges and universities to avoid liability are still beneficial. The authors discuss the varying decisions of courts when deciding to uphold a release form. The authors conclude that release forms are still very per-


tinent today, but colleges and universities must be aware that, depending on the drafting and several other factors, courts may still choose not to decide in their favor.

Carol R. Goforth, The Case for Expanding Child Support Obligations to Cover Post-Secondary Educational Expenses, 56 Ark. L. Rev. 93 (2003). In this article the author advocates that child support obligations should include some financial assistance with post-secondary educational expenses. The author acknowledges that there exists a link between educational levels and income levels, and in order for society to produce the most productive citizens, it must mandate further financial assistance from parents for post-secondary education. While the author mainly focuses on the state of Arkansas and its need of legislative change, the author also examines other states and the efficiency of their financial assistance policies.

Clovia Hamilton, University Technology Transfer and Economic Development: Proposed Cooperative Economic Development Agreements Under the Bayh-Dole Act, 36 J. Marshall L. Rev. 397 (2003). The article discusses the development of cooperative relationships between universities, government, and industry for the sake of economic growth. The author details the relationships between these players and posits that legislative guidance would be conducive to even greater progress.

Stylianos-Ioannis G. Koutnatzis, Affirmative Action in Education: The Trust and Honesty Perspective, 7 Tex. F. on C.L. & C.R. 187 (2002). This article was published prior to the recent Supreme Court decisions in the University of Michigan affirmative action cases. The author argued that the cases, as presented, would force the court to focus on standards of review and public policy considerations rather than conclusively decide the constitutionality of affirmative action programs in general. Instead, the author said, the courts should give educational programs greater leeway in detennining whether the affirmative action policies meet their practical and institutional goals. This change would allow these institutions to state their goals honestly rather than hide behind diversity rhetonc.

Nancy Hogshead-Makar & Sheldon Elliot Steinbach, Intercollegiate Athletics ' Unique Environments for Sexual Harassment Claims:


Balancing the Realities of Athletics with Preventing Potential Claims, 13 Marq. Sports L. Rev. 173 (2003). In this article the authors contend that the troubling sexual harassment claims by students in athletic programs and the potential school liability are preventable. The authors advocate a strong sexual harassment policy that addresses inappropriate relationships between coaches and athletes and removes barriers to reporting harassment.

Michael J. Mazza, May A Catholic University Have A Catholic Faculty?, 78 Notre Dame L. Rev. 1329 (2003). This article looks at the impact of the Catholic bishop's decree that Catholic universities need to have Catholic faculties. The issue is whether these institutions, as employers, should be allowed to discriminate on the basis of religion. The author contends that there is a sound defense to discrimination claims and that existing law does provide some protection to the universities. The author concludes that the universities will enjoy more protection by following the mandate of the Catholic bishops than they would otherwise.

Gabriel A. Moens, Preferential Admission Programs in Professional Schools: Defunis, Bakke, and Grutter, 48 Loy. L. Rev. 411 (Fall 2002). In the wake of the Grutter v. Bollinger decision, the author examines Grutter in light of past similar cases, Regents of the University of California v. Bakke and DeFunis v. Odegaard. The author assesses whether race should be a determining factor in admission to professional schools to achieve necessary diversity and to right the wrong of past discrimination. The author concludes that race should be used as one factor among many when selecting students for admission.

Kevin Oates, Professor Defend Thyself: The Failure of Universities to Defend and Indemnify Their Faculty, 39 Williamette L. Rev. 1063 (2003). This article addresses the factors that affect whether a college has a duty to defend and indemnify faculty who are sued for job-related issues. The author determines that universities need to define clearly the scope of employment, presume they have a duty to defend and indemnify their faculty, and bear the burden of proving that presumption is not valid on a case-by-case basis based on the recommendation of a special committee.

Margaret L. O'Donnell, FERPA: Only a Piece of the Privacy Puzzle, 29 J.C. & U.L. 679 (2003). In this article the author explores other factors


that are important to consider and that contribute to the privacy of student records besides applicable case law and the Federal Educational Rights and Privacy Act of 1974 (FERPA). The author argues that court decisions regarding the privacy of student records should play a secondary role. The author concludes that, despite confusion in its interpretation by colleges and universities, privacy is a value that is important to our society and FERPA will aid in the maintenance of this value.

Christopher M. Parent, Personal Fouls: How Sexual Assault by Football Players is Exposing Universities to Title IX Liability, 13 Fordham Intell. Prop., Media & Ent. L.J . 617 (2003). In Davis v. Monroe Co. Bd. of Educ., The Supreme Court decided that federally funded schools might be liable for damages under Title IX where the school ignores students sexually harassing other students. In light of three pending claims of sexual assault against football players at Division I universities, this article analyzes whether there is a link between college football programs and sexual harassment claims as well as the impact that the Davis decision will have on these schools. Finally, the author recommends that the schools develop a consistent response to sexual harassment allegations and take aggressive steps to prevent athletes from harassing other students.

R. Lawrence Purdy, Prelude: Bakke Revisited, 7 Tex. Rev. L. & Pol. 313 (Spring 2003). This article addresses the use of race in school admissions policies, mainly focusing on the Grutter v. Bollinger case that went before the Supreme Court. Written before the decision was rendered, the author argues that the Supreme Court should reach a conclusion that benefits all American citizens: that race should not be used as a determinant for admission to a college or university.

Pietrina Scaraglino, Complying with Hf PAA: A Guide for the University and its Counsel, 29 J.C. & U.L. 525 (2003). In this article the author addresses the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Privacy Regulations that were enacted in August 2002. Specifically, the author talks about the obligations of universities since the enactment of the Privacy Regulations. The author advises universities to be diligent and take sensible steps to ensure compliance with this new law.

Benjamin F. Sidbury, Gonzaga U. v. Doe and its Implications: No Right to Enforce Student Privacy Rights Under FERPA, 29 J.C. & U.L. 655


U.L. 655 (2003). In this article the author draws attention to the fact that under the Family Education Rights & Privacy Act of 1974 (FERPA), private individuals do not have the right to sue an institution if the institution discloses the individual's records in violation of FERPA. In discussing this issue the author utilizes the Supreme Court's decision in Gonzaga University v. Doe. Despite the inability to sue the institution for violation of FERPA, the author provides a1temative causes of action that may be sought if student records are disclosed without permission.

Rodney K. Smith, Increasing Presidential Accountability in Big-Time Intercollegiate Athletics, 10 Vill. Sports & Ent. L.J. 297 (2003). This article presents a history of college athletics programs as well as an assessment of the accountability of university presidents from the 1980s to the present. The author analyzes the National Collegiate Athletic Association's relationship with university presidents and the increasing personal accountability placed on the presidents. The author concludes that increased accountability on the part of university presidents for college athletic programs is a beneficial trend which should eventually lead toward full personal accountability for the presidents.

Elizabeth Townsend, Legal and Policy Responses to the Disappearing "Teacher Exception," or Copyright Ownership in the 21st Century University, 4 Minn. Intell. Prop. Rev. 209 (2003). This article examines the complex and developing areas surrounding the ownership of academic works. The author discusses the commercialization of universities and the impact this has had in copyright matters. The author promotes the idea that scholars must retain property rights but acknowledges that policy changes may be imminent.

R. George Wright, Cumulative Case Legal Arguments and the Justification of Academic Affirmative Action, 23 Pace L. Rev. 1 (Winter 2002). In this article, the author focuses on the use of cumulative case argument. The author champions this alternative strategy because he feels that it is possible to form an adequate legal argument by organizing its cumulative parts, which by themselves may not reach the required legal standard but when considered together meet the legal standard. He feels that such a strategy will easily survive oppositional attack. The author promotes this alternative model by discussing affirmative action.


Notes & Comments

Interception! The Courts Get Another Pass at the NCAA and the Intentional Discrimination of Proposition 16 in Pryor v. NCAA, 10 Vill. Sports & Ent. L.J. 389 (2003). The facts and details of the recent Third Circuit Court of Appeals case dealing with Proposition 16 and its effect on student athletes are reviewed. The author defines the National Collegiate Athletic Association's (NCAA) role and offers a history of the rules that have been implemented requiring students to achieve certain grade-point averages and particular SAT and ACT scores to participate in collegiate athletics. Further, the author proposes that renewed lawsuits may induce the NCAA to revise its eligibility requirements eliminating future discrimination suits.

Pawns of the State or Priests of Democracy? Analyzing Professors' Academic Freedom Rights Within the State's Managerial Realm, 91 Cal. L. Rev. 1061 (2003). The author discusses the proper approach courts must follow when reviewing cases regarding constitutional academic freedom. The author further suggests applying a reformulated public employee framework while utilizing a functional necessity test. In conclusion, the author believes this framework will eliminate the need to distinguish between institutional and individual rights.

Revolution, Numbers, IX: The Thirtieth Anniversary of Title IX and the Proportionality Challenge, 71 UMKC L. Rev. 659 (2003). This comment provides an overview of Title IX and discusses the impact this legislation has had on women's sports. The author details the cases that have been brought under Title IX, as well as the current status of its provisions. The differences between the men's and women's sports programs and problems that sti11 need to be addressed are also analyzed. The author concludes that the suggestions to weaken or eliminate Title IX would cause irreparable harm to women's athletics programs.

A Constitutional Chaos and a Call for Help: The Chiaroscuro Backdrop of Johnson v. Bd. of Regents of the U. of Georgia, 63 La. L. Rev. 127 (2002). This note discusses an Eleventh Circuit case striking down a university policy that considered race in its admissions process. The author explores the relevant case law, then focuses on the Georgia case. She asserts that courts and universities are in dire need of guidance from the Supreme Court.


Dare to Dream? A Review of the Development, Relief. and Education for Alien Minors (DREAM) Act, 24 Chicano-Latino L. Rev. 79 (2003). The author discusses proposed federal legislation that would give states the option of extending post-secondary education benefits to illegal aliens. This would eliminate a prior statute that limited, if not prohibited, such access. The author applauds the legislation as progressive and necessary.

Pay or Play? The Jeremy Bloom Decision and NCAA Amateurism Rules, 13 Fordham Intell. Prop., Media & Ent. L.J. 673 (2003). The NCAA is tasked with investigating potential violations of its amateurism rules. Recently the NCAA determined that an Olympic-caliber skier would forfeit his amateur status and ability to play college football by accepting ski endorsements and modeling assignments. This note contends that the NCAA needs to revamp its outdated amateur rules to allow athletes to take advantage of opportunities that are unrelated to their co11ege sport.

A Perfunctory Change? Harvard University's New Sexual Misconduct Complaint Procedure: Lessons from the Frontlines of Campus Adjudication Systems, 19 Berkeley Women's L.J. 265 (2003). The discussion here focuses on Harvard University's past and present sexual misconduct procedures. The author criticizes the guidelines and argues for a more progressive policy. She discusses its shortcomings and asserts that more student involvement and procedural safeguards are needed.

Sexual Harassment in Intercollegiate Athletics by Male Coaches of Female Athletes: What it is, What it Means for the Future, and What the NCAA Should Do, 9 Cardozo Women's L.J. 597 (2003). The author examines the problems in female collegiate sports with male coaches. The note focuses specifically on incidents of sexual misconduct. It goes on to outline a prima facie case against both coaches and institutions. The note also discusses several high-profile cases that have arisen. Finally, she adds a sociological study of the subject and concludes with suggestions for the NCAA.

Shattered Dreams: Hazing in College Athletics, 24 Cardozo L. Rev. 1421 (March 2003). The author draws attention to the acts of hazing that occur in the realm of athletics on college campuses. The author talks about how inconsistent state legislation curtailing hazing is causing more harm than good. The author calls for the federal government to


prescribe a hazing law applicable to all states that is tied to federal funding to encourage colleges and universities to adopt it.

Taking One for the Team: Davidson v. U. of North Carolina and the Duty of Care Owed by Universities to Their Student-Athletes, 37 Wake Forest L. Rev. 589 (589). This note focuses on the relationship between student-athletes and universities after a seminal North Carolina case. The author examines the history of the case and then turns to the underlying principles that have developed in recent years. Finally, he concludes that the ruling may have created problematic precedent for universities.

Weakening Its Own Defense? The NCAA'S Version of Amateurism, 13 Marq. Sports L. Rev. 257 (2003). This comment addresses the issues of whether college athletics are still correctly classified as amateur sports and whether the NCAA should be able to use amateur ideals as a defense in antitrust lawsuits. While courts have typically allowed the NCAA constraints because they are tied to education or amateurism, the author argues that changes to ease the restrictions of amateur status can weaken the NCAA's claim that the restrictions are justified.

Book Review Colloquium

Andrea, Guerrero, Silence at Boalt Hall: The Dismantling of Affirmative Action (2002). Bob Berring, Affirmative Action in Perspective, 91 Cal. L. Rev. 1125 (2003); Ian F. Haney Lopez, Traditional Affirmative Action, 91 Cal. L. Rev. 1139 (2003); Devon W. Carbado and Mitu Gulati, What Exactly is Racial Diversity?, 91 Cal. L. Rev. 1149 (2003); William C. Kidder, Silence, Segregation, and Student Activism at Boalt Hall, 91 Cal. L. Rev. 1167 (2003); Amy DeVaudreuil, Silence at the California Law Review, 91 Cal. L. Rev. 1183 (2003).

Book Review

Hal S. Scott, What Game are They Playing? A Review of The Game of Life by James L. Shulman and William G. Bowen, 28 J.C. & U.L. 719 (2002). In this book review, the author attacks and criticizes the authors of the book The Game of Life. The author points out mistakes, discrepancies, and untruths in the book. In contrast to the opinion of the authors of The Game of Life, Scott concludes that athletics are a vital aspect of


college and university life, and the strong presence of athletics at these institutions does not contribute to a "jock culture" that brings shame to the institutions. The author emphasizes that students can be both good students and good athletes.

Symposium

Constitutional Law Symposium, 51 Drake L. Rev. 667 (2003). Russell E. Lovell, II, A Symposium Precis; Paul Brest, Some Comments on Grutter v. Bollinger; Cheryl I. Harris, What the Supreme Court did not Hear in Grutter and Gratz; Kirk 0. Kolbo, Leaving Bakke; Dennis J. Shields, A View From the Files: Law School Admissions and Affirmative Action; Shelli D. Soto, Responding to Attacks on Affirmative Action.

The Resegregation of Southern Schools? A Crucial Moment in the History (and the Future) of Public Schooling in America Do Southern Schools FaceRapidResegregation?, 81 N.C. L. Rev. 1375-1751 (May 2003). John Charles Boger, Education's "Perfect Storm"? Racial Resegregation, High-Stakes Testing, and School Resource Inequities: The Case of North Carolina; Charles T. Clotfelter, Helen F. Ladd & Jacob L. Vigdor, Segregation and Resegregation in North Carolina's Public School Classrooms; Roslyn Arlin Mickelson, The Academic Consequences of Desegregation and Segregation: Evidence from the Charlotte-Mecklenburg Schools; Sean F. Reardon & John T. Yun, Integrating Neighborhoods, Segregating Schools: The Retreat from School Desegregation in the South 1990-2000; Erwin Chemerinsky, The Segregation and Resegregation of American Public Education: The Courts' Role; Wendy Parker, The Decline of Judicial Decision-making: School Desegregation and District Court Judges; James E. Ryan, The Limited Influence of Social Science Evidence in Modern Desegregation Cases; James S. Liebman & Charles F. Sabel, The Federal No Child Left Behind Act and the Post-Desegregation Civil Rights Agenda; William L. Taylor, Title I as an Instrument for Achieving Desegregation and Equal Educational Opportunity.

The legal literature reported is all the education-related literature recorded in THE CURRENT INDEX TO LEGAL PERIODICALS in the months of June, July and August of 2003.

law review digests-

Documents