The Month’s Survey of Legal Scholarship on Academic Issues

By January 13, 2012

The past month has seen a number of articles regarding academic rights published in law reviews and law journals across the country. 

  • The BYU Education and Law Journal recently published its symposium issue, 11 B.Y.U. EDUC. & L.J. 1 et seq. (2011), from its October 2010 program, "Symposium on The Impact of Same-Sex Marriage on Education: Implications for Schools, Curriculum, Students, Their Families, and Educational Communities." The issue includes a number of timely and relevant pieces regarding the rights of religious organizations and parents in relation to same-sex marriage in school curricula and employment practices. While FIRE of course does not take a position on sexual education or same-sex marriage, the First Amendment concerns carry over into many other contexts. Most interesting is Kevin Rogers & Richard Fossey, Symposium Section:  Same-Sex Marriage and the Public School Curriculum: Can Parents Opt Their Children Out of Curricular Discussions about Sexual Orientation and Same-Sex Marriage?, 2011 BYU EDUC. & L. J. 423 (2011). This article does two important things. First, it provides a doctrinal exposition of the constitutional rights of parents over their children’s exposure to ideas in public school curricula. Second, the article surveys the administrative and statutory curriculum opt-out provisions on a state-by-state basis. For example, Illinois provides parents the ability to opt their children out of sexual education courses, HIV awareness courses, health education, and animal dissection. Trying to make sense of the rights of parents over the ideas their children are exposed to is an important goal, not just in the same-sex relationship context, and this article provides many clear examples.
  • A very interesting article by Lewis Wasserman highlights the unsettled nature of the rights of students against public school corporal punishment, and argues that students’ Fourth Amendment expectation of privacy is the best legal framework to apply. Lewis M. Wasserman, Students’ Freedom from Excessive Force by Public School Officials: A Fourth or Fourteenth Amendment Right?, 21 KAN. J.L. & PUB. POL’Y 35 (2011). While corporal punishment is not a major issue in most schools today, the reliance of courts on the reasonable expectation of student privacy in this area certainly would have expansive consequences in other due process areas, such as regulation of student speech in dormitories or online.