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Silencing Students: How Courts Have Failed to Protect Professional Students’ First Amendment Speech Rights
Get PDFOver the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially disrupts or interferes with school activities. However, prior to 2021, the Court had never directly addressed whether a school’s capacity to sanction speech extended off campus. This changed with Mahanoy Area School District v. B. L., where the Court implemented a heightened Tinker standard for off campus speech, indicating some hesitation to extend school authority to cyberspace.
As monumental as the decision is, it is unlikely that Mahanoy will do much to safeguard professional students’ First Amendment rights. In the fifty years following Tinker, the Supreme Court has consistently denied certiorari in cases involving professional student speech, whether on or off campus. In the absence of such guidance, appellate courts have struggled with how and to what extent to apply Tinker and its progeny to professional programs. This has led to inconsistent judicial approaches—almost all favoring universities—that provide professional students with little guidance or reassurance in the strength of their constitutional rights.
This Note argues that courts have failed to protect professional students’ First Amendment speech rights, both on and off campus. The method by which appellate courts have analyzed and applied these doctrines suggests that bad facts are creating bad, or at least incomplete, law. By carefully examining student speech doctrines before exploring professional student speech decisions, this Note asserts that appellate courts have performed relatively cursory reviews of Tinker and its progeny, resulting in misrepresentations of the Supreme Court’s precedent. However, this Note proposes that this is an avoidable outcome that careful, rhetorical analysis of Supreme Court precedent can rectify. When properly analyzed, student speech doctrines should provide a sufficient basis to reliably evaluate professional student speech, so long as courts consider the special characteristics of the professional school environment
Do Not Touch My Data: Exploring a Disclosure-Based Framework to Address Data Access
Get PDFCompanies have too much control over people’s information. In the data marketplace, companies package and sell individuals’ data, and these individuals have little to no bargaining power over the process. Companies may freely buy and sell people’s data in the private sector for targeted marketing and behavior manipulation. In the justice system, an unchecked data marketplace leaves black and brown communities vulnerable to serious data access issues caused by predictive sentencing, for example. Risk assessment algorithms in predictive sentencing rely on data on individuals and run all relevant data points to provide the likelihood that a defendant will recidivate low risk, medium risk, or high risk. These algorithms are flawed and deeply biased because they use factors that correlate with race and socioeconomic status. The law should recognize people’s property interests in their data. Recognizing individuals’ property interests in their data sets up a robust disclosure-based solution. The disclosure-based solution gives individuals substantial control over their data. The Note proposes a centralized platform—the Private Information Reporting System—for individuals to know where their data is used and restrict companies from selling it. This will result in more power for individuals and equity in the justice system
Learning from Mistakes
Get PDFMuch of the attention following the reversal of a defendant’s wrongful conviction focuses on the role the police or the prosecutor played in perpetuating the injustice. To the extent that the public defender institution’s role is considered, it is often limited to its failure to provide effective assistance of counsel. This Article challenges the conventional wisdom that the public defender institution’s role in addressing a wrongful conviction is limited to ineffective assistance of counsel claims and ends once a wrongful conviction is reversed. At minimum, the legal profession’s mandate for competent representation requires public defenders, and the institutions that house them, to learn from any performance that permitted a wrongful result so that it can limit the possibility that such an error would occur again.
The medical, military, and aviation sectors have adopted sentinel event reviews to broadly examine the behaviors and actions that lead to loss of life or physical harm. Perhaps due to its adversarial underpinnings, the criminal justice system has yet to adopt similar large-scale reviews. In the absence of a similarly expansive review of how each component of the criminal process failed to uphold systemic integrity for any client found to be wrongfully convicted, the public defender institution should engage in its own comprehensive learning process. Such a process should include more direct involvement by trial attorneys in appellate work, greater action by public defender institutional leadership to address the official misconduct of other government actors, and a more formalized review by independent evaluators to unearth any failure to abide by professional licensing standards. By adopting such review methods, the public defender institution would more clearly mirror other entities tasked with protecting the public from significant harm and reduce the systemic brittleness that permits repeat failures in the criminal justice system
Raising the Floor from the Back Door: Shareholder Proposals as a Mechanism for Raising Minimum Wage
Get PDFWhen adjusted to reflect inflation, the federal minimum wage is almost 40 percent lower than it was in 1970. The Biden Administration tried and failed to legislatively raise the minimum wage, and political deadlock will continue to kill legislative change. The shareholder proposal, a nonbinding recommendation to management that shareholders can submit for a vote at a public corporation’s annual meeting, presents a path for improving the wages of many workers in the absence of federal legislation. This Note analyzes the best approach to crafting a shareholder proposal on minimum wage that will prompt an effective increase in the minimum wages paid to workers. It evaluates the barriers to success and concludes that the right team of actors can overcome the barriers to raise the minimum wages paid to workers at large corporations through shareholder proposals
The Impact of Insulating Immigration Courts from Judicial Review on America’s New Generation of Families
Get PDFThis Note could be read as another Note addressing Congress’s power to strip jurisdiction from Article III courts. Yet, when this power is exercised in the immigration context, its impact extends far beyond the realm of checks and balances. Instead, this Note is about the insulation of the Board of Immigration Appeals (“BIA”) and its unfettered ability to create, interpret, and adjudicate its own laws. Not allowing courts to review BIA decisions leaves mixed-status families vulnerable to the harsh consequences of inherently arbitrary decisions made by executive officers.
These practices go against the established common law principles of family unity. For nearly a century, our judiciary has emphasized the importance of maintaining the family nucleus and parental autonomy. The courts have explained that it is central to our nation’s history and culture that parents have the right to be present in their child’s upbringing, enacting safeguards such as procedural protections for parents against the intrusion of the State. However, when it comes to mixed-status families, these judicial protections do not extend to immigration proceedings. When a child is born in the United States to undocumented parents, they are forced to decide between complete family separation and the forced removal of a citizen child from the country.
Stripping jurisdiction from courts to hear immigration proceedings of mixed-status families prevents the courts from addressing the violations of the fundamental right to family unity. While Congress does have the power to limit the jurisdiction of Article III courts, Congress cannot withhold judicial relief from people seeking to protect their rights to life, liberty, or property. Judicial recognition of the fundamental right to family unity, in the context of mixed-status families, would be a first step in enabling federal courts to preserve the constitutionality of our immigration system
Declaration of Catherine Smith: \u3cem\u3eNavahine v. Dept. of Transportation, State of Hawai’i\u3c/em\u3e
Get PDFI submit this expert declaration in support of the children’s motion to maintain their September 2023 trial date so they can have their urgent constitutional rights case involving a life-sustaining climate system accorded the legal prioritization it deserves. Each day that passes without redress not only means an infringement on children’s rights but also impacts their health, safety, well-being, and the cultural lifeways and traditions of Native Hawaiian children. These harms are cumulative and compounding for the duration of the plaintiffs’ childhoods as they mature into adults. And many of the plaintiffs’ climate change-induced injuries are irreversible
Guiding Principle 14: Nature and Size of the Business Enterprise, in The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury ed., 2023)
No full textThis chapter is a commentary on Principle 14 of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs, endorsed by the United Nations Human Rights Council in 2011, are the first universally accepted framework for addressing business responsibilities for human rights. They outline State obligations to protect human rights, businesses’ responsibility to respect human rights, and the importance of both States and businesses offering adequate remedies for human rights breaches.https://scholarlycommons.law.wlu.edu/fac_books/1177/thumbnail.jp
Building Belonging: Proven Methods to Decrease Attrition and Best Serve Law Students
Get PDFA crucial task for legal educators is to determine how to retain our students, especially those who may be most vulnerable to attrition first-generation students and students of color. This article looks at nine similarly situated ABA-accredited law schools and assesses these schools\u27 success at retaining their students. The nine schools are all public, operate both part-time and full-time J.D. programs, generally enjoy above average diversity, and have somewhat similar national rankings. The nine schools also report similar median LSAT scores and undergraduate GPAs of recent incoming classes. The overall attrition rates and attrition rates for students of color vary somewhat among these schools; however, taken as a whole, the nine schools showed a downward trend in attrition over the eleven years studied. Law school applications have increased during the several years, a trend seen both nationally and within the schools studied for this article. This upward trend in the number of applications has enabled law school admissions teams to be more selective, yielding a corresponding upward trend in median LSAT scores and undergraduate GPAs. While this trend may partially explain the simultaneous decrease in attrition, the reduction in attrition can also be tied to increased, intentional efforts to retain students.
Interviews were conducted with the nine schools\u27 academic success directors, other law school administrators and faculty, and alumni to determine methods that are most effective in retaining students. These successful methods can be divided into three general categories: (1) providing friendly, readily available, visible assistance to students with pending needs; (2) incorporating specific, important lessons in academic success programming; and (3) intentionally building an immediate, caring community. Within each of these three categories, specific approaches and procedures were identified. A practical, hands-on model of best practices was developed from this study of successful institutions and from the guidance of experienced law school educators, administrators, and alumni
Introduction: Looking and Listening, Seeing and Hearing
Get PDFThis issue of the Temple Journal of International and Comparative Law hosts a symposium about Randle DeFalco\u27s cutting-edge book, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice. In it, DeFalco glances at glimpses of the metastasis of mass atrocity. He sees these metastatic processes-these movements-as simultaneously fast and slow. By fast, he refers to obvious and instantly horrific acts of physical violence. These are massacres, attacks, pogroms, and wanton destruction. But DeFalco also discerns that mass violence implicates slower movements and less directly causal harms: these are famine, starvation, corruption, impoverishment, mental anguish, and aid interference.\u27 The movements of atrocity, therefore, occur through multiple gears and at variable velocities. All gears, however, come into play when atrocity normalizes and industrializes. And there may be no clear relationship between the vector (or velocity) of violence and the harm it produces