Education Law

Abstract: Florida’s education sector faces a new and daunting legal maze in vaccine and mask mandate law. Political forces, schools, institutions of higher education, parents, students—the countless stakeholders in education—are looking to members of Florida’s legal community for guidance. Floridians worry about their health and safety, as well as their rights, liberties, and livelihoods, presenting a diverse and precarious intersection of rights and responsibilities. This is the status of vaccine and mask mandate law across Florida and the nation—an update geared toward equipping practitioners to represent their clients through these unprecedented times informedly. :

Abstract: Using original research we examine whether the handling of the COVID-19 pandemic by certain states (i.e. Wisconsin, California, and Florida) affected the attitude towards and enrollment in traditional routes of public and private education by parents. The results are surprising.

Abstract: Courts readily accept that the university-student relationship is fundamentally contractual but face difficulties discerning the agreement. This paper develops a coherent framework to discern the university-student contract in traditional four-year universities and colleges and then applies that framework to ongoing and highly contentious litigation arising from higher education’s response to COVID-19. The paper begins by considering the three most salient models of higher education: the human capital, sorting, and consumption models. Next, the paper explores how courts implicitly rely on these models to frame their contract analysis in university litigation over issues as varied as student misconduct, affirmative action, and COVID-19 remote learning. The paper demonstrates that the human capital model of higher education, under which students acquire knowledge and complex skills in a residential environment, is the best positive description of the university-student contract as well as the model emphasized in university writings. Next, the paper applies the human capital model to assess the contractual issues raised by higher education’s response to COVID-19. The paper argues that, under the human capital model, almost all universities promised in-person instruction. However, universities also have reserve powers under the contract to protect the learning environment, and consequently COVID-19 vaccine mandates imposed during contract performance were permissible when vaccines were reasonably thought to facilitate in-person instruction. Finally, the paper considers the broader normative issues raised by the human capital model and concludes that the model appropriately recognizes and enforces university promises while leaving universities discretion in zones that require it.

Abstract: The coronavirus (COVID-19) pandemic has wreaked havoc on the U.S. education system. Indeed, since March 2020, every state in the nation has imposed recommended or mandatory school closures in an effort to mitigate the spread of this devastating virus. More concerning still, as the pandemic continues to rage, school finance scholars have projected substantial cuts to public education in the coming months—cuts that are estimated to far outstrip those adopted in the wake of the Great Recession. In fact, ‘[i]f these projections are correct, the resulting hit to education spending would be two and a half times worse than the lowest point of the last recession.’ Moreover, as 55 million public schoolchildren nationwide transitioned to remote learning over the past two years, the prevailing disparities within and between the nation’s most vulnerable schools have not only been laid bare, but also exacerbated. Despite the treatment that the school recovery effort has received in judicial opinions and legal scholarship to date, neither has undertaken an exhaustive analysis of the school recovery process from an equity lens. This Article aims to fill that gap. To do so, it makes two broad claims.First, this Article offers a timely analysis of the federal response to the pandemic within and between our nation’s public schools. It then argues that the Congressional response to the pandemic has failed to advance educational equity in any meaningful sense. Second, this Article provides a critique of the American Rescue Plan Act, one of the most recent Congressional measures enacted to support elementary and secondary school recovery. It then proposes a novel alternative: to meaningfully advance equity in the pandemic’s wake, future education litigants should look to the doctrine of stare decisis and examine the viability of a legal challenge to Alexander v. Sandoval under its analysis. In so doing, the communities most impacted by the educational harms of the pandemic will no longer be left to rely on a political process that has failed to meaningfully advance education equity; to the contrary, overturning Sandoval will not only restore a private right of action under Title VI, but will also add an arrow of empowerment to parents’ collective quiver to challenge inequitable education policies after the pandemic.