Fossey, RichardUniversity of Louisiana at Lafayette
RICHARD FOSSEY, J.D., Ph.D., is professor emeritus at the University of Louisiana at Lafayette and Editor of Catholic Southwest.
Should Courts Ban Demeaning Speech in Schools? The Ninth Circuit’s Controversial Anti-Gay T-Shirt Case
Free speech in the schools can have a bruising quality. The Ninth Circuit was correct when it said that in some instances student speech can be psychologically painful to others—especially vulnerable students like the gay and lesbian students that Tye Harper’s T-shirt criticized. But it is a very dangerous thing for a court to allow schools to propound the officially approved viewpoint on a particular controversial topic and then censor the views of those who disagree. We believe that the Supreme Court should accept Tye Harper’s appeal and restore the proper balance that Tinker established over 35 years ago between the student’s right to speak on unpopular topics and the school’s legitimate interest to maintain a proper educational environment for those same students.
In any event, thanks to Frederick v. Morse, we will soon know whether a sign proclaiming “Bong Hits 4 Jesus” deserves constitutional protection in the context of a school-monitored activity. We hope the Supreme Court will declare that this phrase is not constitutionally protected as it was used in Frederick v. Morse and thus preserve the majesty of the First Amendment for topics that are worthy of its shelter.
It has been 22 years since the Supreme Court first affirmed that children have a constitutional right under the Fourth Amendment to be free from unreasonable searches while at school. In New Jersey v. TLO (1985), the Court acknowledged that school authorities have an important interest in maintaining safety and order in the schools, but that this interest must be balanced against the school child’s constitutionally protected right to privacy.
Unfortunately, students and teachers still experience discrimination and harassment based on sexual orientation. Nevertheless, thanks to progressive legislators and courts scattered around the country, discrimination in the schools based on sexual orientation is headed toward the dustbin of American history. Among all the problems that public schools face, it is reassuring to know that the civil rights of gays and lesbians in American schools are expanding and not in retreat.
Should Schools Tell Parents that a Child is Lesbian or Gay?: Useful Guidance from a Federal Court in California
In California, a lesbian school girl sued school authorities, arguing that her constitutional right to privacy had been violated when her principal disclosed her sexual orientation to her mother. The case, Nguon v. Wolf, provides useful guidance to educators about how and when to discuss a student's sexual orientation with the student's parents.
State and Local Laws that Harass Undocumented Immigrants: It is Time for Public School Educators to Take a Stand
It is time for public school educators to take a stand against state and local anti-immigration laws that are motivated by a desire to force undocumented immigrant families out of their homes and communities. Undocumented immigration is a federal issue that must be addressed comprehensively by Congress—not by state legislators and city council people who are attacking this issue in a piecemeal and often punitive fashion. Individually and through our professional organizations, let us make clear that we oppose such laws because of the harm they cause to children, and let us make our voices heard.
Teachers' First Amendment Rights Are Shrinking in the Wake of a 2006 Supreme Court Decision: That Can't be Good
In 2006, the U.S. Supreme Court issued its decision in Garcetti v. Ceballos, an opinion that sharply restricts the First Amendment's protection for a public employee who reports wrongdoing in the workplace. In years to come, we will likely see federal courts apply the Supreme Court’s Garcetti analysis to cases in which school employees claim they were retaliated against for reporting workplace wrongdoing to their superiors. In most instances, school employees are going to lose these cases and possibly their jobs. For those who believe that school employees should be encouraged to report workplace wrongdoing—not discouraged, Garcetti is indeed unfortunate.
Duh! Students Have a Constitutional Right Not be Secretly Videotaped While Dressing and Undressing in School Locker Rooms
From time to time we hear people complain about unwarranted judicial interference in the day-to-day business of public education. But surely we are all grateful that school children have access to federal courts when they are victims of very serious infringements on their basic human rights. Thanks in large part to the federal courts, American school children do not live in the Orwellian world of 1984.
Stotter v. University of Texas at San Antonio: How a Minor Dispute About a Professor’s Office and Laboratory Became a Federal Lawsuit
“Don’t make a mountain out of a molehill,” is a warning we hear from time to time. In other words, don’t make too much of a problem that really isn’t all that serious. When university administrators become annoyed with a subordinate over some minor matter and are tempted to take strong, unilateral action, they should think about the Stotter case. It is almost always better for academicians to resolve minor disputes among themselves and not in the courts.
Can a state education agency impose professional sanctions against a teacher who beats a child when the child is the teacher’s own son and the beating takes place at home?
Borrowing Money to Attend College: Could the Rising Level of Student Indebtedness Lead to a National Economic Crisis
The time has come to face the growing problem of college-loan indebtedness. Otherwise—like the current economic crisis that was partly caused by declining home values—college-loan indebtedness will some day contribute to enormous financial problems for a large number of individual Americans and for the nation as a whole.
Federal courts have become increasingly hostile to strip searches in the schools, yet these searches continue. A recent Ninth Circuit case puts school administrators on notice. Strip searching students for minor infractions may be a constitutional violation. A school administrator who conducts an unreasonable strip search could wind up writing a personal check to the student whose privacy rights were violated.
In Gillman v. School Board for Holmes County, a federal trial judge held that Heather Gillman, a Florida high school student, had a constitutional right to express her support for gay and lesbian rights while she is at school. The facts of the case, as the judge said himself, are extraordinary. In essence, the judge upheld the right of Florida high school students to express their support for gay and lesbian classmates over the opposition of a principal who was openly hostile to homosexuality and a school board that backed the principal’s position.
In March 2006, Efren Garcia, a school employee at a Texas high school, said “Viva la Raza!” on the morning that student protesters walked out of Del Valle High School in protest of an immigration bill that had been passed by the U.S. House of Representatives. He was fired at least partly for making that statement, and a federal court upheld the school district’s action. Garcia v. Montenegro, as the case was styled, illustrates how a school employee’s right to comment as a citizen on matters of public concern may be restricted by a federal court when the employee’s speech conflicts with a school employer’s legitimate interest in preserving school discipline.
People make financial mistakes every day. The bankruptcy courts were created to give such people a fresh start. If the financial titans of Wall Street who wrecked the national economy face personal financial ruin, they can file for bankruptcy and get a fresh start. Meanwhile, Congress has made it almost impossible for student-loan debtors to clear their debts in the bankruptcy courts. It is hard to understand why investment bankers are entitled to discharge their debts in bankruptcy while thousands of overburdened student-loan debtors are not entitled to the same opportunity.
Who's Afraid of Those Big Bad Homeschoolers? A Sensible Homeschooling Decision by a California Court
Last August, a California appellate court issued a sensible decision that upheld the right of California parents to homeschool their children. In re Jonathan, as the case was titled, provides public educators with an opportunity to examine their views about homeschooling.
“Sloppy Scholarship” is Not the Same as Premeditated Plagiarism: A Department Chair Accuses a Professor of Plagiarism and Loses a Nasty Lawsuit
In higher education, plagiarism is a very serious matter. But a recent Alabama court decision suggests that academia may be viewing plagiarism from a more nuanced perspective. Some scholars recognize that there is a difference between an inadvertent mistake in failing to attribute a source and premeditated plagiarism.
Bad News for Colleges and Universities: A Federal Court Recognizes a Cause of Action for Negligent Admission of a Mentally Disturbed Student
In Estate of Butler v. Maharishi University of Management, a federal court recognized a cause of action against a private university for negligent admission of a student after a student with a history of mental illness fatally stabbed a fellow student in the campus dining hall. As a matter of public policy, this was a bad decision. Colleges and universities cannot reasonably screen student applicants for evidence of their propensities for violence. If the Butler case signals a judicial trend, colleges and universities should press for legislation in all fifty states that bars lawsuits against higher education institutions for claims arising from their student admission decisions.
Thank You, College Board: The Higher Education Community Should Support the College Board’s Endorsement of the DREAM Act
The higher education community now has an opportunity—a golden opportunity—to make an important moral statement by joining the College Board in support of the DREAM Act.
In a recently published decision, a federal court in West Virginia stopped a school district from implementing a random drug testing program for teachers. In a well-reasoned preliminary order, the court ruled that the school district’s drug testing program—involving the collection of urine from randomly chosen teachers--violated the Fourth Amendment. Public educators everywhere should applaud the court’s decision and the protection it affords to teachers’ reasonable expectations of privacy while working in the public schools.
Most people believe that student loans are almost impossible to discharge in bankruptcy, but two recent bankruptcy-court decisions may be a sign that bankruptcy judges are growing more sympathetic towards overwhelmed student-loan debtors.
Doniger v. Niehoff, a 2008 opinion by the Second Circuit Court of Appeals—a decision Judge Sotomayor joined in but did not write—provides some clues about Judge Sotomayor’s judicial philosophy regarding the proper role of the federal courts in school disputes.
School districts received a welcome message from a recent decision by the Fifth Circuit Court of Appeals. In Palmer v. Waxahachie Independent School District, the court ruled that a Texas school district has the authority to a adopt student dress code that bans all messages on students' clothing so long as the district offers students other means of expression during the school day.
Parents Have No Constitutional Right to Be in School With Their Children: Anybody Have a Problem With That?
Do parents have a constitutional right to be physically present at school with their children? A federal court in Texas says no.
Should public schools adopt the business model of Google? Is selling advertising space inside the schoolhouse gate an answer to our chronically underfunded public schools?
Student Suicide and the Law: The Courts Are Reluctant to hold School Districts and Their Employees Liable
School districts and their employees are occasionally sued after a student commits suicide, but courts are reluctant to hold them liable for these tragic events. Thus, an educator’s responsibility to prevent a student from committing suicide is primarily a professional and ethical obligation and not a legal duty.
Can a school district be held liable when a high school teacher forcibly “French-kisses” a student? A Louisiana court says yes.
McGrath v. Dominican College: Deliberate Indifference to Gang Rape in a College Residence Hall May Violate Title IX
A mother of a student suicide victim accuses a Catholic college of deliberate indifference to her daughter's gang rape.
Does a College Student Have a Constitutional Right to Choose Abortion as a Speech Topic in Her Communications Course? A Federal Court Says No
In O'Neal v. Falcon, a college student sued her instructor after he refused her request to give a speech on abortion in an undergraduate communications class.
Responding to Campus Violence in the Wake of the University of Alabama Shootings: Two Things We Should Not Do
Colleges and universities can probably do more to make their campuses safer in light of the tragedies at the University of Alabama and Virginia Tech University. Absent reckless conduct, however, we should not hold colleges and universities responsible for violent acts committed by disturbed faculty members or students.
Do Students Have a Constitutional Right to Humiliate School Principals on MySpace? Maybe Yes, Maybe No
Today, students who are unhappy with school authorities can avail themselves of the internet and express their disrespect to the entire planet. More and more frequently, alienated students attack school administrators on personal web sites, blogs, e-mail communications, or social networking web sites. Often they use vulgar language or worse. Sometimes, in an adolescent effort to be funny, they defame school administrators with allegations of sexual misconduct.
A Federal Court Makes a Bad Decision: School Authorities Cannot Discipline a Student For Posting a YouTube Video that Described a Classmate as a Slut
In a bad decision for public education, a federal judge in California ruled that school authorities could not discipline a student for posting a YouTube video that described a classmate as a slut.
Sexual Orientation, Conservative Christians, and the Ethical Standards of University Counseling Programs: Conflict in the Courts
A graduate student in counseling at a public university was dismissed from her program after she asked to refer a gay client to another counselor based on her religious views about sexual morality.
Student-loan creditors can wait a quarter of century or even longer before pursuing a debtor for an unpaid student loan. State laws barring stale claims offer no defense for student-loan debtors who defaulted on their loans.
Let’s not kid ourselves--we have child molesters in some of our schools. They are crafty; they are obsessed; and they have a primitive, almost animalistic instinct for choosing student victims who will passively submit to their aggressions. Educators need to cultivate an attitude of vigilance, a bit of forensic horse sense, and a healthy sense of skepticism when they observe an employee’s suspicious behavior with a student.
Can Professors Settle Academic Disputes Without Lawyers? The Unfortunate Case of Giordano v. Claudio
A dispute between two professors about an article in a scholarly journal ends up in federal court.
College students have a constitutional right to privacy in their dormitory rooms, and two young men from Boston College are surely grateful.
Pima Community College did the right thing when it suspended Jared Loughner as a student and required him to obtain a mental health clearance as a condition of re-enrolling.
Hard Times in California: Universities Should Not Reward Top Executives While Lower-Paid Employees Are Suffering
Our nation's universities are headed for hard times. University executives should share in the financial sacrifices that lower-paid university employees are facing in the current economic downturn.
The “I ♥ Boobies” Case: Educators, Not Judges, Should Define the Boundaries of Decent Speech in Schools
May a school punish students for wearing breast-cancer awareness bracelets that include the word "Boobies"? A federal court says no.
A Wisconsin school teacher was fired for viewing pornography on a school computer in an incident that lasted only a few seconds.
Kowalski v. Berkeley County Schools: A School Can Discipline a Student for Creating a “Students Against Sluts Herpes” Website Without Violating the First Amendment
Can a school discipline a student who constructed a social networking webpage to orchestrate a targeted attack on a classmate? Yes, says the Fourth Circuit Court of Appeals, at least in certain circumstances. If a student’s off-campus electronically delivered speech disrupts a school’s learning environment, school authorities can impose discipline. In Kowalski v. Berkeley County School District (2011), the court examined a high-school student’s discussion group webpage that other students used to engage in hateful and even defamatory speech toward a classmate. That kind of speech constitutes bullying and harassment, the Fourth Circuit ruled, and the school can suspend the student who created the webpage without offending the First Amendment.
San Diego Unified School District v. Commission on Professional Competence: A California Teacher is Fired for Soliciting Sex on Craigslist
Can a teacher be fired for soliciting sex on craigslist? A California court says yes.
Occupy Wall Street Needs a Clear Objective: How About Bankruptcy Relief for Overburdened Student-Loan Debtors?
This commentary recommends that the Occupy Wall Street protests demand bankruptcy relief for student-loan debtors
The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University
All urban school districts in Texas now ban corporal punishment. A majority of Texas school children attend schools where corporal punishment is prohibited.
Barnes v. Zaccari: A Public University Cannot Expel a Student Without Offering a Due Process Hearing—Even if the Student is Suspected of Being Dangerous
A student facing expulsion from a public university is entitled to a due process hearing at some point in the expulsion process, even if university officials perceive the student to be dangerous.
Economic Hardship Deferments and Income-Based Repayment Plans: Band-Aids on the Tumor of the Student Loan Crisis
Economic Hardship Deferments and Income-Based Repayment Plans provide overburdened student-loan debtors with some relief, but they do not solve the underlying crisis in the federal student loan program.
Nelson v. City of Davis: Campus Police Officers Who Injure Nonthreatening Students with Pepper Spray May be Committing a Constitutional Offense
In Nelson v. City of Davis, the Ninth Circuit made clear that campus police officers who fire dangerous projectiles at non-threatening students are engaged in the use of unreasonable force.
Not To Decide Is to Decide: The Supreme Court’s Decision Not to Review Four Student Internet-Speech Cases Leaves Public-School Educators in a State of Confusion
Public school leaders need guidance from the Supreme Court concerning their authority to regulate students' internet-delivered speech that is hurtful to others in the school community.
Corporal Punishment is On the Wane in Southern Schools: Encouraging Evidence from Florida, North Carolina and Texas
Although 13 Southern states permit school officials to paddle children in the public schools, research shows school boards are moving away from corporal punishment in Florida, North Carolina and Texas.
"The only thing I wanna hear out of you is nothing!" Is It Time for Federal Legislation to Ban Corporal Punishment in Schools?
The time may be ripe for federal legislation that would banish paddles from American schools forever.
Protecting the Legal Rights of LGBT Students to Attend the Prom
Students who attend school in the rural communities and small towns of five Southern states suffer the lion’s share of all corporal punishment that takes place in the nation’s public schools; and it is in these small towns and rural communities where corporal punishment must be vigorously attacked.
The Campus Press and the First Amendment: The Fourth Circuit Rules that Virginia Cannot Ban Alcohol Ads in College Newspapers
In a recent decision, the Fourth Circuit Court of Appeals ruled that the Virginia Alcoholic Beverage Control Board cannot prohibit college newspapers from advertising alcohol.
"The Law Does Not Require a Party to Engage in Futile Acts:” Student Loans, Bankruptcy and a Compassionate Federal Court
In re Roth, decided by the Bankruptcy Appellate Panel of the Ninth Circuit Court of Appeals, is an important decision that took a compassionate approach toward an insolvent college-loan debtor who filed for bankruptcy late in life without any real prospect of ever paying off her student loans.
Medlock v. Indiana University: A University is Sued After Suspending a Student Who Was Caught Growing Marijuana in His Dorm Room
The Seventh Circuit ruled that university student inspectors did not violate a student's constitutional rights when they conducted a routine inspection of his dorm room and found marijuana. No warrant is required for routine health and safety inspections, the Seventh Circuit ruled.
When Did Uncle Sam Become Ebenezer Scrooge? The U.S. Department of Education Opposed Bankruptcy Relief for a Quadriplegic Student-Loan Debtor
Recently, there have been signs that the bankruptcy courts are becoming more compassionate toward people who enter the bankruptcy process burdened by student loans. Perhaps the most dramatic of these recent cases is Myhre v. U.S. Department of Education, involving a quadriplegic man who filed for bankruptcy seeking to discharge $14,000 in student loans.
“It’s Her Fault”: An Illinois School Board Fires a Guidance Counselor For Self-Publishing a Sexually Explicit Advice Book on Adult Relations
An Illinois school board fired a tenured guidance counselor because he self-published a sexually explicit advice book on adult relationships. The Seventh Circuit Court of Appeals upheld the school board's decision on the grounds that the board reasonably believed that the book could undermine the integrity of the school counseling program.
Commonwealth v. Copney: Does a Murder Suspect Have a Constitutional Right to Privacy in His Harvard Girlfriend’s Dormitory Room?
From the perspective of the higher education community, Massachusetts' highest court made a good decision when it ruled that a murder suspect had no constitutional right to privacy in his Harvard girlfriend's dorm room that would prohibit police from searching the room without a warrant.
In Re Lamento: An Honest But Unfortunate Debtor Is Entitled To Sleep At Night Without Worrying About Unpayable Student-Loan Debt
Over creditors' objections, a bankruptcy court in Ohio discharged the student-loan debt of a single mother of two who was living below the poverty level.
Tidings of Comfort and Joy: In an Astonishingly Compassionate Decision, a Bankruptcy Judge Discharged the Student Loans of an Alabama School Teacher Who Acted as Her Own Attorney
Bankruptcy judges are increasingly willing to rely on compassion and common sense when they decide cases involving honest but unfortunate student-loan debtors who took on mountains of student-loan debt hoping to improve their lives but did not find jobs that paid well enough for them to reasonably make their loan payments.
Corporal Punishment in Texas Public Schools: Data from the U.S. Office of Civil Rights Show Texas Educators Are Making Significant Progress Toward Eliminating a Harmful Disciplinary Practice
A recent study found that corporal punishment declined in Texas public schools from 2010-2011 to 2014-2015. The percentage of students who attended school in districts that formally prohibit corporal punishment increased from 60% to 66% over four years. Furthermore, through the examination of OCR data for the 2011-2012 academic year, the study found that 72% of Texas students attended school in districts that did not report a single incident of corporal punishment.
Does a Student Have a Constitutional Right to Criticize Lesbianism in a University Film Course? A Federal Court Says Yes
Do students have a First Amendment right to write about controversial topics and express controversial ideas in a university classroom? In some cases they do, as a federal court in New Mexico recognized in a brief opinion released in 2014. But then the court reversed itself a year later.
Easing the Path to Bankruptcy Relief for Distressed Student-loan Debtors: An Idaho Bankruptcy Judge Shows us the Way
In an influential concurring opinion to an important bankruptcy decision, Judge Jim Pappas, an Idaho bankruptcy judge, urged federal courts to adopt a more sensible way for dealing with student loan debtors who file for bankruptcy.
G. G. v. Gloucester County School Board: The Fourth Circuit Court of Appeals Upholds the U.S. Department of Education’s Transgender Restroom Policy
Only one federal circuit court of appeals has addressed the legal issues involved with allowing a transgender student to use the restroom that aligns with his gender identity. We analyze this court opinion and discuss the status of the law for school officials.
Income-Driven Repayment Plans for Distressed Student-Loan Debtors: Not a Silver Bullet for Easing the Student Loan Crisis
Income-driven repayment plans for distressed student loan debtors offer short-term relief from burdensome monthly loan payments but they have many drawbacks.
What Happens to Tenured Professors When a Public University Closes and Gets Merged Into a Newly Created Public University?
This commentary examines the conditions through which tenure protects professors, but can also be revoked, and specifically analyzes the 2017 Fifth Circuit court case of Professor Alexander Edionwe, who sued UTRGV president Guy Bailey when his tenure position at UT Pan Am dissolved due to the creation of UTRGV and closure of UT Pan AM.
A Small Step Forward: By Unanimous Vote, the Louisiana Legislature Bars Schools from Administering Corporal Punishment to Students with Disabilities
The Louisiana legislature recently passed legislation barring school districts from administering corporal punishment to children with disabilities. This is a small step toward total elimination of corporal punishment in public schools.
Thomas v. Board of Trustees of Nebraska State Colleges: A State College Is Not Liable Under Title IX or Tort Law for Abduction and Death of Female Undergraduate
A Nebraska state college is found not liable by two courts after Tyler Thomas, a 19-year-old freshman, disappeared and was declared dead by a Nebraska court. A 29-year-old male student who resided in a dormitory room next to Thomas' room, was later charged with murder.
Doe v. University of Cincinnati: A College Student Accused of Sexual Assault Has a Constitutional Right to Confront His Accuser at a University Disciplinary Hearing
In a recent decision, the Sixth Circuit Court of Appeals ruled that a male student accused of sexual assault has a constitutional right to confront his accuser at a university disciplinary hearing.
Corporal Punishment in Rural Schools: Student Problem Behaviors, Academic Outcomes and School Safety Efforts
Bradley v. West Chester University: College Administrators Can Be Fired For Raising Ethical Concerns In the Workplace
What can happen if a university budget director expresses ethical concerns about how the university’s budget is reported? Can she be fired?
Regents of University of California v. Superior Court: Universities Have a Duty to Protect Students From Foreseeable Harm During Curricular Activities
The California Supreme Court ruled that universities have a special relationship with their students that obligates them to protect students from foreseeable harm while students are in their classrooms or participating in curriculum-related activities.
Nguyen v. Massachusetts Institute of Technology: A University Has a Limited Duty to Prevent Students from Committing Suicide
In May 2018, the Massachusetts Supreme Judicial Court ruled that universities within its jurisdiction have a limited duty to prevent their students from committing suicide.
Peltier v. Charter Day School: A Charter School’s Regulation Requiring Female Students to Wear Skirts is Ruled Unconstitutional
A federal judge ruled that a charter school's regulation requiring female students to wear skirts violates the Equal Protection Clause.
Jackson v. McCurry: School Officials Remove a Father From a School Gym Where He had Been Watching His Daughter Play Volleyball
In Jackson v. McCurry, escalating tensions between a student’s father and school officials led to a federal lawsuit.
Dicent v. Kaplan University: Third Circuit Forces Dissatisfied Student to Arbitrate Her Claims Against a For-Profit College
A dissatisfied former student sued Kaplan University in federal court, accusing the for-profit university of making false claims and disseminating false advertisements. A federal court dismissed her claims, ruling that she had agreed to arbitrate her dispute with Kaplan rather than sue. On appeal, the Third Circuit Court of Appeals affirmed the trial court's dismissal.
“All These People Must Die”: The Ninth Circuit Rules That a School May Expel a Student for Creating a Hit List, Even Though the Student Never Intended for Anyone to See It
In McNeil v. Sherwood School District 88J, the Ninth Circuit Court of Appeals made clear that a school district may expel a student for out-of-school speech that contains threats of violence against other students without violating the First Amendment, even if the student never communicates those threats to anyone.
What Happens to Tenured Faculty When a College Closes? Reflections on the Closure of Marlboro College
The closure of a small liberal arts college is a traumatic event for faculty members who lose their jobs. Is there anything a college can do to relieve the hardship on professors who are thrown out of work, perhaps after spending their entire careers at an institution that ceases to exist?