Notes

In response to an increase in the use of the Internet to distribute distance education courses and resultant concerns that copyright law related to distance education activities had become outdated, Congress passed the Technology Education and Copyright Harmonization Act (TEACH Act) in November, 2002. Through this enactment, Congress sought to align educators’ rights to use copyrighted materials in online courses with their rights to use such materials in traditional, classroom-based courses. In this Note, Kristine Hutchinson argues that they did not achieve this result. Rather, she suggests, the Act is fraught with requirements and vague terminology, which have caused confusion amongst educational institutions and have resulted in the failure to take advantage of the Act. In the end, despite the Act’s shortcomings, Hutchinson concludes that the TEACH Act is viable legislation, and offers suggestions to aid educational institutions in making use of the expanded rights to use copyrighted materials in online courses enabled by the TEACH Act.

The antipathy of federal and state courts toward equal protection arguments in lawsuits challenging the public funding of education have forced education activists to search for alternative doctrinal hooks as they continue to seek reform in states’ funding and management of schools. These activists have turned to state constitutions’ education clauses, which impose duties on state governments to provide an “adequate” education for all children in the state. However, the art of defining and measuring an “adequate” education has advanced little beyond its state in 1973, when Justice Thurgood Marshall found the term unhelpful. In this Note, Josh Kagan surveys various means of defining and measuring adequacy used by state courts, including the use of existing legislative or executive standards, the use of future legislative or executive standards, a variety of educational outputs (such as standardized test scores), and educational inputs (such as quality of teachers, curricula, or school buildings). Applying scholars’ theories of state constitutional interpretation and the history of state education clauses, Kagan argues that state courts should be aggressive in their use of educational inputs to define and measure educational adequacy. Unique factors of state governmental structure justify state court involvement in education policy questions that federal courts would consider inappropriate. These factors, coupled with the history of state education clauses, enable state courts to draw on a wide set of historical and current sources to define educational inputs required by state constitutions, and provide jurisprudential guidelines for this necessarily policy-laden analysis. Such an approach also encourages education activists to seek remedies other than reform to school financing systems; instead, activists can target states’ provision of particular educational inputs.

Circuit court decisions in the cases of Qutb v. Strauss and Hutchins v. District of Columbia signal a change in judicial attitude towards associational challenges to teen curfews: If a curfew contains an exception for activities protected by the First Amendment, then it will not be struck down as unconstitutional for infringing on a teenager’s right to associate. At first blush, a First Amendment exception appears sufficiently protective of a teenager’s right to associate. But as Todd Kaminsky demonstrates in this Note, the exception may in fact not go far enough. Certain activities that fall outside the scope of the exception—most notably, public discussion-are necessary antecedents for activities within the scope of the exception, such as protest. By examining sociological accounts of Freedom Summer, the Velvet Revolution, and other similar movements, he establishes the link between public discussion and protest and brings into sharp relief the negative First Amendment consequences of curtailing public discussion. In addition, he explores how a curfew, even with an exception, may make it more difficult for expressive teen organizations to recruit new members, by reducing the time available for teens to socialize and develop informal social networks. As such, Kaminsky concludes, courts should give due regard to associational challenges and scrutinize carefully teen curfews, despite the inclusion of First Amendment exceptions. Otherwise, courts may inadvertently erode teenagers’ right to associate by choking off the conditions necessary for the vigorous exercise of that right.