A Roundup of Recent Legal Scholarship on Student Rights

By on November 21, 2012

Here are some of the most interesting recent law review articles touching on issues in students’ rights:

  • Professor Dan Subotnik of Touro Law School has a retrospective article entitled The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System, 45 Akron L. Rev. 883 (2012). This wide-ranging piece lays a large part of the blame for the Duke Lacrosse case at the feet of campus culture. With the dust settled, it is worth revisiting the case, and Professor Subotnik lays out the narrative well.
  • In the same issue, Carol N. Tran has a student comment: Recognizing an Academic Freedom Exception to the Garcetti Limitation on the First Amendment Right to Free Speech, 45 Akron L. Rev. 945 (2012). The article lays out some arguments for why Garcetti v. Ceballos, 547 U.S. 410 (2006), should not apply to academic speech. We have commented on Garcetti many times before, and agree that it does not apply to academic speech. In a sad irony for an otherwise useful comment, Tran does seem to think, wrongly, that student speech "does not have anything to do with scholarship or systematic learning." This is ironic because Tran, Editor-in-Chief of the Akron Law Review, forgets the many students involved in teaching and research, such as law students serving on law reviews!
  • Law student Samuel Butler, IV has an article exploring off-campus speech regulation in light of recent cases. The article, The Summer of Clarity: What the Summer of 2011 Says About Student Speech Rights, 22 Kan. L.J. & Pub. Pol’y 83 (2012), contends that federal courts are beginning to converge on a test for regulating off-campus speech of students, such that schools cannot regulate student off-campus speech unless it meets the Tinker standards, and is either directed at campus or intended to spur action on campus. Yet this seems to give schools carte blanche to regulate even adult speech, a point noted by five of the eight judges in the en banc decision in J.S. v. Blue Mountain School District, 650 F.3d 915, 936 (3d Cir. 2011) (concurrence noting that Tinker simply does not apply to off-campus speech). The debate is far from settled, but it is a debate that must happen.
  • Professor Frederick Schauer of the University of Virginia Law School delivered the Hartman Hotz lecture at the University of Arkansas, Fayetteville, entitled: The Permutations of Academic Freedom, 65 Ark. L. Rev. 193 (2012). The article rehashes some of the ways the modern, administrative university challenges traditional concepts of academic freedom, and is well worth a read.