Thursday, May 23, 2013

Recent scholarship

Legal scholarship on education law covers the waterfront this week. This week we note articles on affirmative action jurisprudence, income disparity in education, and that Brigham Young University's Education and Law Journal is out with several articles on education law and reform.

 New Fisher scholarship

Leslie Yalof (Pace Law School) has published The Inevitable Irrelevance Of Affirmative Action Jurisprudence, 39 J.C. & U.L. 1 (2013), excerpted below:

Fisher v. University of Texas presents an Equal Protection challenge to the University of Texas' race-preference admissions policy. In this article, I am proceeding on the assumption that, in its decision, the Court will not abolish affirmative action programs wholesale, if it addresses the merits of Abigail Fisher's challenge. ... Based on the existing precedent, the Court can decide the Fisher case in any of three ways. First, the Court could avail itself of the opportunity presented by Fisher to expand the constitutional permissiveness of considering race as a factor in admissions decisions. Given that four of the eight justices deciding this case have made clear their strong opposition to the use of race in this context, this scenario is highly unlikely. At the other end of the spectrum, the Court could find that there is no longer a compelling governmental interest in the use of race in the admissions process, thereby causing the sun to set on affirmative action admissions policies much sooner than Justice O'Connor predicted in her majority opinion in Grutter. This is an equally unlikely scenario because four of the Justices have already confirmed their commitment to the compelling governmental interest in using race-preference policies to achieve viewpoint diversity. The most likely outcome is that the Court will rule very narrowly, striking down the UT program as not being narrowly tailored, while leaving intact the Court's previously articulated finding of a compelling governmental interest in diversity education. Thus, colleges and universities will remain free to construct some type of race-preference admissions policy in an effort to ensure diversity among their classes. Despite the Court's commitment to upholding the narrow use of race in the admissions process, however, most institutions will be unable or, more likely, unwilling to construct constitutionally permissible race-preference admissions programs. ... For this reason, regardless of how the Court decides, Fisher will ultimately be inconsequential to school admissions decision-making and, therefore, will do little more than highlight the growing irrelevance of affirmative action jurisprudence.

In Race and Income Disparity: An Ideology-Neutral Approach to Reconciling Capitalism and Economic Justice, 3 Colum. J. Race & L. 49 (2013), Robert Hardaway (University of Denver, Sturm College of Law) examines the continuing problem of ideological battles between political groups and coalitions that have frustrated the quest for solutions to widening income and wealth disparities:

The fault for society's failure to adequately address income disparity along racial lines does not lie exclusively with any one political group or party. Both liberals and conservatives have permitted ideology to cloud their search for meaningful solutions. If these solutions are to be found, conservatives must discard ideological preconceptions in such areas as abortion rights, family planning, and drug policy; liberals must likewise discard ideology in their approach to tax policy, immigration, housing, and education. Both conservatives and liberals must discard ideological preconceptions and abandon politically seductive, but ultimately demagogic and self-defeating policies relating to international trade, and residential exclusionary policies, particularly in the areas of zoning.

In Misshaping the River: Proposition 209 and Lessons for the Fisher Case, 39 Journal of College and University Law 53 (2013), William C. Kidder relates five lessons for Fisher learned from California's affirmative action ban, Proposition 209. Kidder is the Assistant Executive Vice Chancellor at UC Riverside, but notes that the article expresses his personal views rather than the views of the University of California. Below is an excerpt of Misshaping the River:

California's experiences with and responses to Proposition 209 bear on the Fisher v. University of Texas at Austin case with respect to both questions of compelling interest and narrow tailoring. ... This article advances the following findings and conclusions:

Lesson #1--At the University of California, which is subject to an affirmative action ban, recent survey data from eight campuses confirms that the campus racial climate is significantly more inhospitable for African Americans and Latinos than at UT Austin and two other peer universities.... Relatedly, on the question of “critical mass” versus racial isolation that was discussed at length during the U.S. Supreme Court's oral argument in the Fisher case--and that was one key consideration taken into account by UT Austin in devising its admissions program--the comparative data in this article suggest that the threat of educational harm associated with racial isolation is very real (particularly for African Americans) and should not be minimized or overlooked.

Lesson #2--Contrary to recent claims by groups opposing affirmative action, Proposition 209 (“Prop 209”) triggered a series of educationally harmful “chilling effects.”

Lesson #3--Affirmative action critics supporting Petitioner are propagating two related myths about credentials and performance. First, they scapegoat affirmative action as the overwhelming cause of racial/ethnic differences in SAT scores at UT Austin and elsewhere, when this relationship is quite modest for reasons stemming from the mathematics of admissions. Secondly, the critics stubbornly insist that affirmative action causes substantial “mismatch” effects on underrepresented minority student performance when in fact there is a voluminous social science literature indicating that affirmative action at highly selective institutions has a net positive effect on graduation rates and other important outcomes.

Lesson #4--While some argue in favor of class-based affirmative action in lieu of race-conscious programs, UC's atypically large enrollment of low-income undergraduates is strong “natural experiment” evidence verifying that class-based policies are not effective substitutes for race-conscious policies.

Lesson # 5--The experience of: UC Business Schools and UC Law Schools after Proposition 209 provide compelling case studies regarding the need for race-conscious affirmative action.

Other articles this week address the future of legal education. While we would normally leave articles on the legal education debate to our colleagues at The Legal Whiteboard, we highlight a few this week that touch upon equity in education.

 Inequities and the future of legal education

Brian Tamanaha (Washington University Law) has posted The Failure of Crits and Leftist Law Professors to Defend Progressive Causes (Stanford Law & Policy Review, forthcoming) on SSRN.

In the article, Tamanaha confronts liberal legal academics for "perpetuating the profoundly warped and harmful economics of legal education" and encourages them to "take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation."

 Responding to Tamanaha's Failing Law Schools book, Michael A. Olivas has written Ask Not for Whom the Law School Bell Tolls: Professor Tamanaha, Failing Law Schools, and (Mis)Diagnosing the Problem, 41 Wash. U. J.L. & Pol'y 101 (2013). Olivas "call[s] us to action as a community, for threats to the universe of legal education will affect us all to our collective detriment and to that of our students." Here is an excerpt of his abstract:

The real Cassandra, however, is Professor Brian Z. Tamanaha, whose apocalyptic book Failing Law Schools is a shrill call to arms, a substantial work of powerful charges and dire solutions, well-written and arriving at a crucial time in legal education, in the United States and worldwide. I believe he holds powerful diagnostic skills and has a storyteller's narrative, but I believe his solutions are substantially wide of the mark, and would violate the code that remedial actions should, at the least, do no harm. If he were simply overstating issues or being a provocateur for the sheer sake of being one, as other critics have done, I would simply let him stew in his own juices. But his devastating critique has a number of accurate observations, ones I share, so laying out his arguments and his critical architecture is necessary to see how the analytic second step--his remedies--can be so wrong. Indeed, rather than merely noting his architectural framework, I will note the arithmetic of his remedies, and attempt to show why he should receive only partial credit for his math homework.

In The Job Gap, the Money Gap, and the Responsibility of Legal Educators, 41 Wash. U. J.L. & Pol'y 1 (2013), Deborah Jones Merritt (Moritz College of Law, The Ohio State University) addresses economic reform in legal education:

Today's law school graduates face a grim prospect: more than half of them will not make a career practicing law. Some of those graduates will enjoy jobs in fields allied with law, but many will settle for work with little connection to the degree they earned. ... These trends generate two gaps. The first is between the number of students earning law degrees and the number of lawyering jobs available to them. The second is between the tuition that students pay and the early-career salaries they receive--if they are fortunate enough to find lawyering work. I explore these two shortfalls, the job gap and the money gap, in the first and second sections of this Essay. In the final section, I turn to an equally troubling lacuna: the failure of law schools to acknowledge the harms their graduates are suffering. This responsibility gap is one that we, as educators, have the power to bridge. As I explore the shortfall between our schools' actions and our responsibilities, I offer several concrete steps to close that gap.

In An Essay on Rebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375 (2013), Jack Graves (Touro Law) describes ways to reduce risks and improve legal education outcomes for the bottom half of students in the bottom half of all law schools. Focusing on this group is essential to rebuilding legal education, Graves writes, because "[t]his group represents 25% of current law graduates, and, as a group, they almost certainly bear a disproportionate share of the burden created by our broken educational model. While the suggestions that follow will in some ways specifically target this “bottom quartile,” I believe they would materially improve legal education for a substantial majority of all prospective students."

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