Philip Lee

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic freedom to protest—conceived as a right to learn—should be seriously considered by institutional decision-makers when they are creating rules and policies governing on-campus student dissent. Otherwise, student voices will be deemed irrelevant and protests will be unfairly reduced to unjustifiable outbursts by young people craving attention—something to be either tolerated as mere annoyances or extinguished as threats to order. But if administrators and professors take the time to listen to what students are saying and explore the issues underlying their grievances, much can be gained. I argue that colleges and universities move away from the question, “how do we stop our student activists,” toward the question, “what are students learning from their activism and what, in turn, can the institutions learn from it?”

As I have posited in this Article, one way to start the process of learning from what student activists have to say is to include students’ rights in a balancing test when speech is disputed—e.g., in student protests involving invited speaker interruption, unauthorized building and office occupation, and even various forms of disruption in cyberspace. Such a test should be articulated in university policies and made binding through contract law. While student protestors may not always win in the balancing, at least their academic freedom right to learn, and I would argue teach others, will be part of the conversation. My hope is that recognition that student protest has positive value to the university community and is an essential part of academic freedom will begin to shift attention to the substantive issues underlying student grievances. In this way, student activism will truly be an opportunity for all to learn.

My article proceeds in four parts. Part I analyzes the historical context of racial exclusion in American higher education and connects it to modern efforts to promote racial justice to illustrate a continuum of students pressing for this type of change. Part II outlines the inadequacies of student academic freedom as articulated by courts defining this freedom in relation to the First Amendment. Part III proposes a new mechanism based on contract law that would incorporate major higher education policy statements on student academic freedom that conceptualize this freedom through a learning principle as legally binding obligations between universities and their students. Finally, Part IV explores how my proposed student academic freedom would balance the tensions between free speech and student demands for racial justice by employing a test that takes both “the marketplace of ideas” and student freedom to learn into account.

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims—15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida. 

In this Article, titled Expanding the Schoolhouse Gate: Public Schools (K-12) and the Regulation of Cyberbullying, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus.  Specifically, I aim to make four unique contributions to the conversation. 

First and foremost, I argue that cyberbullying is so harmful in and of itself that it should be afforded diminished First Amendment protections. 

Second, to address overbreadth and vagueness concerns of such diminished protections, I argue for a narrow definition of cyberbullying that incorporates all three elements of the prevailing social scientists’ definition of the term: 1) intent to harm; 2) repetition; and 3) power differential. 

Third, I argue for a threshold “nexus” or “foreseeability” requirement before applying Tinker to off-campus speech in order to effectively balance students’ speech rights with schools’ regulatory authority to protect their students.  Many cases of cyberbullying have involved harmful student expression created off campus—for example, a derogatory website or insulting Facebook posts made at home or threatening emails and texts sent from a smartphone many miles away from school.  Most state laws do not allow their primary or secondary schools to regulate this type of expression because it did not occur at school or at a school-sanctioned event.  These states adopt a “no authority” approach in regulating off-campus speech.  However, this approach leaves schools powerless in the face of the serious harm created by cyberbullying that originates offline.  Some states adopt a “no distinction” approach, treating the regulation of on-campus and off-campus speech the same as long as they meet the “substantial disruption” test of Tinker v. Des Moines.    However, this approach does not adequately address students’ free speech rights. 

I propose an alternative to these approaches based on cyberbullying’s diminished First Amendment protections.  Specifically, I urge that states and their schools adopt a “nexus” or “foreseeability” approach to regulate cyberbullying that originates off campus.  The Fourth Circuit has applied these two approaches in analyzing the constitutionality of the disciplinary actions of school officials in situations where students used social media to attack or threaten other students.  For this court, schools can regulate off-campus student speech if there is a nexus between the speech and the campus—for example, the creator of a website aims it at a specific school by sending invites to the school’s students to view it or the site is accessed on campus.  In the alternative, schools have regulatory authority if it is reasonably foreseeable that the off-campus speech will reach the campus.  I argue that the “nexus” and “foreseeability” approaches effectively balance the competing interests of protecting cyberbullying victims and protecting students’ free speech rights. 

Fourth, I urge that when Tinker analysis is applied to cases of cyberbullying, the “substantial disruption” test should be focused on the victim’s educational experience and not the total school environment.  In the alternative or in conjunction with the “substantial disruption” test, the “interference with the rights of others” test should also be applied in these situations. 

My article proceeds in five parts.  Part I outlines the relevant framework for regulating student speech in public school settings.  Part II explores our current age of digital expression and its implications for school authority to regulate cyberbullying—a type of bullying that typically originates off campus using personal computers and smart phones.  Part III describes the five approaches that courts and legislatures have taken to analyze student speech rights in the digital age when students use electronic devices off campus to attack or threaten others associated with campus.  Part IV analyzes why schools should be able to regulate off-campus speech in cases of cyberbullying focusing on the particular harm that cyberbullying causes, the inadequacy of other legal remedies to address this harm, and the reasons why schools are uniquely situated to address this form of student-on-student aggression.  Finally, Part V offers three suggestions on how schools should regulate cyberbullying without running afoul of the First Amendment including a clear definition of the term that is consistent with the social science literature, a clear statement of school jurisdiction to regulate cyberbullying when it originates off campus, and a proposal for how the Tinker tests should be applied in cases of cyberbullying.

This Article explores the relatively new idea in American legal thought that people of color are human beings whose dignity and selfhood are worthy of legal protection. While the value and protection of whiteness throughout American legal history is undeniable, non-whiteness has had a more turbulent history. For most of American history, the concept of non-whiteness was constructed by white society and reinforced by law -- i.e., through a process of socio-legal construction -- in a way that excluded its possessor from the fruits of citizenship. However, people of color have resisted this negative construction of selfhood. This resistance led to the development of a number of empowered racial minority identities that were created through labor and affirmatively claimed by people of color. I analyze in this Article the concept of racial minority identity as a form of identity property and utilize examples from intellectual property and defamation law to illustrate some of the nuances of such a concept.

This Article proceeds in three parts. Part I begins by exploring the socio-legal construction of race and explains Cheryl Harris’s idea that whiteness has been a form of property. Part II sets forth the argument that people of color have constructed empowering racial identities in resistance to the socio-legal construction of negative racial meaning that has been imposed on them. Finally, Part III explores the idea of identity property and provides examples of how intellectual property and reputational harm concepts can elucidate ways in which identity property can be expressed and protected.

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the extent the Constitution recognizes any right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors, and is not violated by the terms of the Act.” In other words, this particular court held that academic freedom protects the institution as a whole, but not the individual professors. When other courts have decided to protect various scholarly activities through First Amendment principles, their analysis has generally been rooted in public employee free speech analysis, and has not taken into account the unique context of American higher education.

In this Article, I argue that the dominant constitutional analysis of academic freedom is insufficient to protect the full range of academic freedom interests that have emerged over time. Specifically, constitutionally based academic freedom is unduly limited by: (1) the state action doctrine; (2) the constraints of public employee free speech principles; and (3) the judicial interpretations that grant this freedom to universities only, leaving professors without this protection when their interests collide with their universities. Thus, constitutionally based academic freedom is inadequate to preserve the free exchange of ideas that universities are supposed to epitomize.

As an alternative to an exclusively First Amendment foundation for this freedom, I argue for a contract law-based conception specifically for professors. Contract law allows courts to protect the rights of professors at both public and private universities. It also allows for the recognition of professional norms and academic custom in interpreting the rights and duties of professors and their universities. Finally, contract law also allows courts to structure remedies that take into account the specific campus contexts that give rise to various disputes. Therefore, in order to create more consistency in the law and an alignment between institutional and professorial protections at both public and private universities, I argue that while constitutional law is still the proper mechanism for defending institutional rights from government interference, contract law should be the primary mechanism for protecting professorial academic freedom. While professors at state institutions would have additional First Amendment protections against their employers, for reasons I detail in this Article, I contend that these protections are insufficient. Thus, developing a rich body of contract law on this subject would greatly enhance professorial academic freedom across the country.

This Article proceeds in three parts. Part I describes the evolution of judicial conceptions of academic freedom. Part II then analyzes the limitations of constitutionally based academic freedom to protect professors engaging in their scholarly work. Given these constraints, Part III concludes with an exploration of contract law as a better foundation for professorial academic freedom.

On April 25, 1960, African American students from Alabama State College participated in a sit-in at a segregated lunch grill at the Montgomery County Courthouse. The lunch grill refused to serve the students and ordered them to leave. The students left and went to the courthouse corridor, where they remained for an hour before going back to campus.

When Alabama State College learned of the students’ actions, it summarily expelled them without notice or hearing. In expelling the students, the college relied on Alabama State Board of Education regulations that allowed it to expel students for “conduct unbecoming a student or future teacher in the schools of Alabama.” Six students challenged their expulsions in court for being in violation of their due process rights. They lost at trial and then won on appeal.

The case was Dixon v. Alabama State Board of Education (1961). It was the first time that any American court recognized that students at a state university have due process protection under the Fourteenth Amendment. Instead of allowing state universities to discipline their students without regard to their constitutional rights as they were permitted to do under the in loco parentis era, the Fifth Circuit mandated that state universities had to abide by constitutional restrictions. Specifically, it held that state universities must provide notice and some opportunity to be heard before they could expel their students for misconduct.

Dixon, by recognizing due process rights for students, marked the death of in loco parentis. University students were no longer viewed as mere children in the eyes of the law. This national transformation in the legal relationship between state universities and their students began with local student activism—namely, African American students protesting segregation policies at a lunch grill near their home campus. It ended with a Fifth Circuit case that ushered in a new era of constitutionally based students’ rights.

In this article, I move away from the typical due process analysis of this case and instead explore how the students’ civil rights activism was transformed into a fight for students’ rights, and I analyze the interplay of this transformation with future civil rights work. Specifically, I acknowledge that students’ rights, in general, benefited from the Dixon precedent. But I ask how the student activists who brought the case personally benefited. None were able to tell their stories in court in a way that challenged separate but equal laws. None of them took advantage of the due process that the Fifth Circuit ruled that Alabama State College must provide. None re-enrolled at the college after the case was over. And segregation was still alive and well in Alabama after Dixon was decided. So what did they win?

Using archival materials obtained from Alabama State University, documents contained in the Dixon case file, an autobiography of the attorney for the students, and legal texts on education law, I show how the motivations of the students to engage in their protest diverged from the legal significance of Dixon.

I conclude by arguing that despite the divergence of interests between the student activists and the lawyers, both the sit-in and the litigation empowered students all over the country to engage in the civil rights struggle. I provide examples of these student activists being afforded unprecedented levels of constitutional protection by courts that specifically rely on Dixon. Even though the Dixon plaintiffs’ original motivation to challenge Jim Crow diverged from the due process expansion that resulted from the case, these students’ goals were nonetheless furthered when other student activists for racial justice across the country were afforded constitutional due process protections during the height of the civil rights movement.

""      In this article, I contest a certain definition of diversity in higher education that was recently articulated by Chief Justice John Roberts and Justice Antonin Scalia at oral argument in Fisher v. University of Texas. [FN1] This definition assumes that diversity is simply reducible to the number of students in a college, university, graduate school, or professional program who choose to self-identify as racial or ethnic minorities on their applications. However, diversity based solely on checked boxes (i.e., “checkbox diversity”) is problematic for a number of reasons.

      I offer a critique of checkbox diversity, and to the extent that any higher education admissions offices rely on checkbox diversity in making their decisions, I provide an alternative for creating a more meaningful type of diversity in their entering classes. Specifically, for an admissions process to be narrowly tailored under the educational benefits rationale set forth by the U.S. Supreme Court, the evaluation must consider how each individual applicant would add to the diversity of perspectives in the class. Checkbox diversity fails to meet this objective because it assumes that certain checked boxes are proxies for different perspectives--which also assumes an essentialist view of racial identity. It, therefore, does not go deep enough to determine how an applicant's optional self-identification actually informs his or her perspective.

      As an alternative to this superficial measure of diversity, I contend that admissions officers and faculty readers at institutions of higher education should view racial and other identities as contextual and look for markers within the application materials that demonstrate how these identities are important to an applicant who claims them.
""

This article reconstructs a mostly forgotten moment in Harvard Law School history when the students organized in the early 1990s across race, gender, sexual orientation, and ability and disability lines to push for faculty diversity. The new student coalition, called the Coalition for Civil Rights, gave the students’ activism unusual momentum. This initiative included the first time that law students, acting pro se, sued their law school for discrimination in faculty hiring and the first time Harvard Law School students were publically tried by their school’s Administrative Board for conducting an overnight sit-in at the Dean’s office (i.e., the Griswold 9 incident). Drawing upon social movement theory, the author analyzes why the activism was so robust during this time period by applying the concepts of signaling, framing, and resource mobilization to the actions of the students. The author argues that the unprecedented diversity of the coalition contributed to the activism’s intensity in key ways. First, the protests by this diverse group signaled to the entire student body that the faculty diversity movement was gaining momentum. Second, the ways in which the coalition members framed an inclusive conception of diversity created a sense of strong group cohesion among students. Third, the diversity of the group served as a resource that enhanced the coalition’s problem solving abilities. The author concludes that although the most vigorous activism was relatively short-lived, the students that were involved in this coalition were nonetheless successful in making their voices heard by Harvard University and the general public.

In this article I trace the legal history, through court opinions, of in loco parentis (Latin for “in the place of the parent”) as applied to the relationship between American universities and their students. I demonstrate that until the 1960s, the in loco parentis doctrine allowed universities to exercise great discretion in developing the “character” of their students without respect to their students’ constitutional rights. The demise of this doctrine forced courts, and universities themselves, to redefine the relationship of universities with their students in important ways.

Data gathered on Asian American students in public school by the Massachusetts Department of Education are aggregated into one general “Asian” category, which may skew the results, both perpetuating an enduring myth and masking any true gaps that may exist for certain Asian American subgroups. As explored in this article, achievement gap tracking for the Massachusetts Comprehensive Assessment System is an apt example.

In this article, I posit that this aggregation of many subgroups into one general “Asian” category perpetuates the myth of Asian Americans as a model minority, while downplaying any achievement gap that exists for certain Asian American subgroups. I conclude with a policy recommendation—a call to track information on the Asian American subgroups—to address this concern.