Tuesday, September 20, 2016
Professor Jim Hilbert (Mitchell Hamline) has posted Restoring the Promise of Brown: Using State Constitutional Law to Challenge School Segregation on SSRN that discusses how constitutional claims can reanimate Brown and address school segregation. The abstract is below:
Despite over six decades of litigation, both state and federal court strategies have largely failed to address inequalities and segregation in America’s schools. More than sixty years after Brown v. Board of Education, our schools are still deeply unequal, and school segregation has generally been increasing over the past several decades. In both academic and social outcomes, students in these segregated schools lag far behind their peers.
This article examines the viability of using state constitutional law to address school segregation. For more than forty years, state courts have played a major role and have had varied success in addressing issues of educational inequality under school finance and educational adequacy theories. A handful of cases have used state constitutional law to challenge school segregation, including a brand new case, Cruz-Guzman v. State of Minnesota, which restarts the discussion on how best to restore the original promise of Brown.
Federal courts long ago departed sharply from the initial promise of the Brown decision and have spent the last few decades undermining desegregation. While hailed as one of the Supreme Court’s greatest accomplishments, the iconic Brown decision has been largely dismantled. Yet the goals of Brown remain a priority.Educational adequacy cases targeting school segregation in some respects are a combination of the best of federal and state courts. Such potential cases represent the next logical step in addressing inequality in our schools, combining the many advantages of state court litigation with the original promise of Brown.
Tuesday, August 30, 2016
Mark McAllister (Indiana Tech) has posted an article on SSRN exploring regulating student cell phone searches through an administrative warrant process. The abstract is below.
Rethinking Student Cell Phone Searches by Mark Chase McAllister (Penn State Law Review, 2016)
For K-12 students, this article advocates a middle-ground solution that accounts for the unique privacy interests that apply to all cell phones while preserving the need to control the K-12 learning environment without undue judicial supervision. This article thus proposes that K-12 schools adopt an internal system of checks and balances consisting of a higher-level, independent review of a school official’s desire to search a student cell phone, along with an administrative warrant the supervising official must sign before the search may be carried out.
After weighing the pros and cons of extending Riley to the schoolhouse gates, this article arrives at the simple conclusion that, despite its narrow holding, Riley’s sweeping pronouncements regarding the unique privacy concerns inherent in the modern cell phone demand a rethinking of the law governing student cell phone searches. Riley stated, for example, that the privacy protections owed modern cell phones are even greater than what we enjoy in our homes, the area that has traditionally received the greatest Fourth Amendment protection, thereby implying that cell phone searches, of any kind and in any place, are owed the greatest possible constitutional protection. In addition, although Riley involved searches of arrestees, who have traditionally enjoyed diminished privacy interests, the Court nevertheless found the privacy-related concerns in cell phones weighty enough to require a warrant, notwithstanding arrestees’ reduced expectations of privacy. This exact rationale can be applied to K-12 and college students, who, like arrestees, have also enjoyed reduced Fourth Amendment protections.
This article concludes by proposing heightened Fourth Amendment protections for both K-12 and college cell phone searches. First, this article argues that although college students enjoy reduced expectations of privacy in certain instances, particularly for administrative inspections where campus safety concerns predominate, the justifications for such rulings do not apply to a cell phone’s digital contents.
Thursday, June 30, 2016
Scholarship: Gerber On Justice Thomas And Fisher; Gomez-Velez On Philanthrocapitalism And Education Reform
Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education
Scott D. Gerber (Ohio Northern Univ.) examines Justice Thomas' Fisher I opinion in an recent article (50 Rich. L.R. 4, (2016)). From the abstract posted on ssrn.com: This article originated as a paper for an affirmative action symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association. The article places Justice Thomas’s concurring opinion in Fisher v. University of Texas (“Fisher I”) in the larger context of his voluminous writings on race in general and affirmative action in particular. The article also discusses the commentary on Justice Thomas’s Fisher I opinion because the reaction to what he writes, especially on matters of race, is almost as important as the opinions themselves. The article concludes with some brief comments on Schuette v. Coalition to Defend Affirmative Action, a 2014 case about the constitutionality of a 2006 amendment to the Michigan state constitution banning racial preferences in Michigan, and on Fisher v. University of Texas (“Fisher II”), which the Court will be deciding by the end of June 2016. Justice Scalia’s recent death figures prominently in the concluding section.
Common Core State Standards and Philanthrocapitalism: Can Public Law Norms Manage Private Wealth’s Influence on Public Education Policymaking?
Natalie Gomez-Velez (CUNY) examines "the phenomenon of philanthrocapitalism in current education reform, with a focus on the Common Core State Learning Standards initiative" in a forthcoming article in the Michigan State Law Review, posted on ssrn.com. From the abstract: Part I describes the role that a small group of philanthropists played in setting and catalyzing the Standards development and implementation. This description includes private philanthropists’ interactions with federal, state, and local government actors and other stakeholders. It also examines their work in the political process and the public discourse. Part II then considers the Common Core initiative over the last five years, including the role of philanthrocapitalists, nonprofits, and the state and federal governments, and the recent public backlash against and reconsiderations of the Standards. Part III considers the proper scope and limits of private philanthropists’ role in public education policymaking from the perspective of public law norms, governance, and policymaking. Drawing upon structural governance models designed to support robust public engagement in education policymaking, as well as those designed to prevent agency capture, the Article closes by considering methods for placing appropriate boundaries on the influence of philanthrocapitalists. At the same time, it acknowledges the difficulty of imposing meaningful limits in a political environment dominated by the influence of private wealth.
Wednesday, June 15, 2016
Scholarship: Black on Teacher Quality, Parker on School Segregation, and Robinson on Education Federalism
Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.
This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.
Sixty years ago the Supreme Court announced, “In the field of public education, the doctrine of ‘separate but equal’ has no place.”1 In 1954, no one doubted the significance of that command, even among those who actively resisted it.
Brown v. Board of Education 2 has now outlasted Plessy v. Ferguson, which for 58 years sanctioned “separate but equal”. Does that necessarily mean, however, that Brown has eclipsed Plessy in significance? Has the power of Brown instead waned in its advancing age? Granted, few publically decree Plessy as the best guide to race relations in the twenty-first century; yet, our schools are still segregated and unequal in ways reminiscent of Plessy. That naturally leads one to question the lasting significance of Brown, particularly as it turns 60.
This chapter examines the legacy of Brown through the lens of two sets of school desegregation cases. The first are four cases that the Supreme Court considered in its Brown v. Board of Education decision — cases from Delaware, Kansas, South Carolina, and Virginia. The second are school desegregation cases litigated in the Middle District of Alabama.
The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation’s education goals. One of the nation’s unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform, I argue that disrupting the nation's longstanding approach to education federalism – which I define as the balance of power between federal, state, and local governments that emphasizes substantial state autonomy over education – is necessary for a successful national effort to achieve this goals. I then provide a foundational theory for strengthening the federal role in education by analyzing the essential elements of a successful reform effort based upon research regarding the strengths of federal education policymaking and upon identification of the missing elements of current reforms. Finally, I respond to many of the potential arguments against disrupting education federalism. For Instance, I argue that National Federation of Independent Business v. Sebelius continues to provide ample room for Congress to expand the federal role in education in ways that are needed to build a more equitable education system. I also explain that although strengthening the federal role in education will reduce some forms of state and local control over education, it also will provide states and localities new forms of control.
Monday, June 13, 2016
Ann Mallet Killenbeck (Arkansas)'s article on Fisher II, Ferguson, Fisher, and the Future: Diversity and Inclusion As A Remedy for Implicit Racial Bias, 42 J.C. & U.L. 59, 60-63 (2016), posits that the Supreme Court will use Fisher II to guide higher ed institutions' racial diversity policies. Below is an excerpt from Prof. Killenbeck's introduction:
My thoughts on Fisher II in this Article will be somewhat unusual. My threshold assumption is that the Court will use the case to reaffirm Grutter and clarify what is required when a college or university decides to adopt an affirmative admissions policy as a means of attaining student body diversity. As I will explain, the decision to grant review was both logical and necessary. It is actually a welcome opportunity for the Court to give badly needed guidance to both sides in this debate about how best to go about implementing those policies. Indeed, I believe that for those who wish to preserve the diversity victory in Grutter, the best possible outcome will be to have their implementation feet held to the fire of intense judicial scrutiny in Fisher II. That said, there are substantial perils in this process given the lackadaisical manner in which virtually all institutions have approached their actual educational obligations once they have taken the steps required to admit a diverse group of students.
I will also argue that this new round of litigation offers an important opportunity for affirmative action's proponents to do two interrelated things. The first is to recognize, account for, and undertake key obligations imposed by Grutter and Fisher I. The second is to seize the opportunities presented in the wake of Fisher II to strengthen their case for the value of diversity as a matter of educational policy by focusing our attention on implicit racial bias. The virtues of educational diversity identified by Justice Sandra Day O'Connor in her opinion for the Court in Grutter had solid social science foundations. The evidence cited by the Court at that time did not, however, account for an important aspect of our national malaise, the corrosive impact of implicit racial bias and stereotyping. Significant developments in this body of knowledge have the potential to bolster the Court's prior determination that diversity's “benefits are not theoretical but real.” This knowledge can, and should, be part of the dialogue as we reexamine these issues.
Wednesday, May 4, 2016
Michelle J. Anderson (CUNY) has posted Campus Sexual Assault Adjudication and Resistance to Reform on SSRN (125 Yale Law Journal, 2016 (Forthcoming)). From the abstract: The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. That movement is now transforming the key elements of the crime: force and nonconsent. The second reform movement, conservative in nature, increased criminal and civil punishments for rape. While there has been a backlash to the reformation of force and nonconsent, there has been little political or scholarly opposition to the imposition of increased punishments for rape. The Office for Civil Rights at the Department of Education recently clarified that Title IX, which outlaws sex discrimination in education, requires colleges and universities to respond promptly and equitably to allegations of campus sexual assault. In addition, colleges and universities are increasingly adopting affirmative consent rules, a standard higher than most state criminal codes, to govern sexual activity on campus. These progressive changes in campus sexual assault adjudication have faced a backlash, mirroring the backlash to progressive rape law reform. Rape law’s evolution over time suggests not only that we should support campus adjudication of sexual assault under an affirmative consent standard, but also that we should oppose both unique procedural protections for those accused and mandatory punishments for those found responsible.
The Gap between Rights and Reality: the Intersection of Language, Disability, and Educational Opportunity
Claire Raj (South Carolina) has posted "The Gap between Rights and Reality: the Intersection of Language, Disability, and Educational Opportunity" on SSRN. From the abstract: To date, schools and courts have largely ignored the intersection of language and disability, operating as though the IDEA addresses one set of students and the EEOA an entirely different set. Many schools select and implement their English language acquisition programs without giving any thought to the unintended consequences on special education. This approach, sanctioned by courts, is both flawed and dangerous because a school’s chosen language program can either impede or enhance the accurate identification of students with disabilities. Even more worrisome, some schools use language acquisition as a justification to delay identification of ELLs with disabilities. While this is inconsistent with the intent of the IDEA, provisions of the IDEA, as interpreted by courts, do not adequately prevent it. Even worse, EEOA precedent may actually encourage such delays. As a result, students with dual challenges of language and disability do not receive the necessary educational services these two statutes are designed to provide. The mixed messages from statutes and courts can be resolved, but such cohesion requires reading the IDEA and EEOA together, not separately. This Article provides the specific analysis by which to do so.
Killing Two Achievements with One Stone: The Intersectional Impact of Shelby County on the Rights to Vote and Access to High Performing Schools
Steven L. Nelson (Memphis) has posted his article on the Intersectional Impact of Shelby County on voting rights and access to high quality education on SSRN (published in 13 Hastings Race & Poverty L.J. 225 (2016)). From the abstract: The Supreme Court’s decision in Shelby County restricted access to political participation for Black voters in New Orleans. In particular, this Article argues that the Shelby County decision allows states to use the charter school movement to displace predominately Black and elected school boards with predominately White and non-elected school boards. Furthermore, this Article asserts that there are better formats for charter school governance if academic accountability remains a goal of the charter school movement.
Nicole Garnett (Notre Dame) has posted her article (forthcoming, Vanderbilt Law Review) discussing "the blurring of the distinction between charter and private schools" in education reform efforts on SSRN. From the abstract: Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. As a result, millions of American children now attend privately operated, but publicly funded, schools. This rise in a “sector agnostic” education policy has profound implications for the state and federal constitutional law of education because it blurs the distinction between charter and private schools. This paper explores three of the most significant of these implications.
Wednesday, March 30, 2016
Education Law Prof Blog co-editor Derek Black (South Carolina) has posted Reforming School Discipline (Northwestern University Law Review, forthcoming) on ssrn this week. (March 30, 2016). In his article, Professor Black proposes a novel legal framework to connect school discipline reform efforts to the affirmative education rights and duties found in state constitutions. Below is the abstract:
Public schools suspend millions of students each year, but only five percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.
Drawing on the connection between discipline and educational quality, this article pits harsh discipline as the enemy of good schools and debunks the narrative of bad students as the enemy of good ones. It also argues that this evidence, combined with the affirmative education rights and duties found in state constitutions, can be used to demand that states substantively reform discipline.
First, because students have a constitutionally protected individual right to education, suspensions and expulsions should trigger heightened scrutiny. Heightened scrutiny would not bar suspensions, but it would force states to justify the efficacy of suspension. The practical result would be to prompt states to adopt pedagogical sound approaches to student misbehavior. Second, discipline practices that undermine educational quality violate states’ constitutional obligation to provide equal and adequate educational opportunities to all students. In these instances, state constitutions should obligate states to intervene with reform.
A link to the full article can be found here.
Tuesday, March 22, 2016
Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools
Stuart Chinn (Oregon) has posted Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools (March 16, 2016), Utah Law Review, Forthcoming) on ssrn. In the article Professor Chinn analyzes Supreme Court cases on race-and-public education and religion/ideology-and-public education to explore how do we construct and maintain a stable political community characterized by intractable difference? From the abstract:
Elementary and secondary public schools constitute perhaps the most direct point of contact between most American children and the state. Thus, these institutions have great opportunity for shaping future participants in the American political community and for imparting the particular values that will help constitute that community. Relatedly, my focus on judicial conceptions of political community in the public school context provides the key attraction of hearing discussion of these themes by major national political actors within the illuminating format of principle-based judicial opinions. In the article, I make three primary claims. The first is a point of similarity across the racial and religious/ideological contexts. I will claim that judges have seen public schools as a cultural adhesive force. That is, the precise manner in which public schools bind students together is by virtue of the physical proximity of students to one another, and their observation in, participation in, and creation of a common culture. However, this doctrinal comparison yields a key difference too, and this constitutes my second claim: in the race-and-public education context, the central problem that has appeared in the doctrine — and the main problem that has animated judicial conceptions of community in that context — has been the problem of community creation. That is, judges have largely pondered the justifications and limits upon the state’s authority to create racial plurality in public schools. Such arguments proceed from background assumptions of minimal racial plurality absent the contemplated state actions. In contrast, in the religion/ideology-and-public education context, the major cases and judicial arguments on plurality within public schools are preoccupied with the problems of community maintenance. That is, judges have pondered the justifications and limits upon state actions toward maintaining stable communities in public schools in the face of individual claims of religious freedom and competing state claims favoring uniformity. In contrast to the racial context, the background presumption here is one of inevitable religious/ideological plurality in public schools, even absent the contemplated state actions.
Finally, I offer a third and final claim: for community-builders, maintenance problems are easier than creation problems. This point, in turn, suggests that while plurality may be inevitable, plurality within a communal structure holds greater hope for lines of division to be overcome. This is due to the potential for the culture intrinsic to a community to serve as an adhesive across lines of division. Thus to the extent that one finds the goals of community and unity to be worthwhile, at least some of the time, this observation implies that mechanisms that situate plurality within community are often preferable to letting plurality persist between distinct communities.
Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities
Elizabeth Shaver has posted Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities (March 18, 2016), Utah Law Review, 2017 on ssrn. From the abstract:
After an eight-year old boy with disabilities refused to sit down, a School Resource Officer (SRO) handcuffed the boy's elbows behind his back, restraining the child for fifteen minutes. A video of the incident made national headlines. Thereafter, the boy, along with another child with disabilities who had experienced similar treatment, filed suit. Cases like this highlight the complex issues that arise when a student with disabilities engages in undesired behavior at school and that behavior leads to the intervention of an SRO. This article examines those issues and offers recommendations. It begins by providing a background about SROs, focusing on their training and responsibilities. Next, the article reviews the provisions of the Individuals with Disabilities Education Act (IDEA) that pertain to the use of behavioral interventions to address undesired behavior of students with disabilities. The article then provides a legal analysis of lawsuits brought by students against SROs. These cases reveal the need for a comprehensive training program for SROs, clear delineation of the scope of - and limitations on - the SRO's duties, and strict adherence by both school personnel and the SRO to their respective roles. Therefore, the article offers recommendations that involve a variety of stakeholders, including school administrators, teachers, SROs, and parents of students with disabilities.
Wednesday, March 16, 2016
The Right to Counsel in School Discipline Proceedings
Julie K. Waterstone (Southwestern) has published Counsel in School Exclusion Cases: Leveling the Playing Field, 46 Seton Hall L. Rev. 471 (2016), which calls for a right to counsel in school discipline cases, particularly given the poor outcomes that face students who are excluded from school. From the abstract:
Access to education is crucial to a child's future. Although there is no federal constitutional right to an education, it has been deemed a property interest that cannot be taken away without adherence to due process. But over the last twenty years, with the rise of the zero tolerance movement, it has become far easier to exclude children from school. Despite the due process protections available, many children facing school exclusion do not have their rights adequately protected without the presence of counsel in school discipline proceedings. Using actual case studies, this Article seeks to broaden the discussion of the civil right to counsel movement to include a right to counsel in school discipline proceedings where a child's right to education is at stake. This Article will highlight the importance of education and bring to light the ease with which it can be taken away from a young person, particularly a young person of color from a low-income family. States should recognize the importance of education by ensuring that it is a right that cannot easily be taken away -- this can be done through the availability of counsel as well as through legislative reforms to our school discipline laws. This Article will also consider the role that law school legal clinics can play in securing counsel for students facing school exclusion. This discussion will hopefully help guide the development of public policy surrounding school discipline and, at the very least, contribute to a discussion of needed legal reforms and the expansion of the services provided by law school legal clinics.
Access to Campus Recreation Programs under the ADA
Sarah J. Young (Indiana), William D. Ramos (Indiana), Sherril L. York (National Center on Accessibility), Allison L. Fletcher (Indiana), have published On the 25th Anniversary of the ADA: How Inclusive Are Campus Recreation Programs?, 26 J. Legal Aspects Sport 22 (2016). The abstract is below.
The purpose of this article is to present the findings of a pilot study, which critiqued the welcoming environment presented by campus recreation programs in the Big Ten. The year 2015 marked the 25th anniversary of the Americans with Disability Act (ADA). Enacted into law in 1990, the ADA is one of the most comprehensive pieces of civil rights legislation prohibiting discrimination against individuals with disabilities. Postsecondary educational institutions are covered under Titles II and III of the ADA and must insure that the programs offered, including campus recreational sport, are accessible to students with disabilities. This was most recently reinforced by the U.S. Department of Education in its January 2013 Dear Colleague Letter providing guidance on the obligations of public schools to provide an equal opportunity to participate in extracurricular activities. Of note in the guidance is “students at the postsecondary level must also be provided an equal opportunity to participate in athletics, including intercollegiate, club, and intramural athletics.” In a search of case law, no specific cases claiming discrimination under the ADA by campus recreation programs against students with disabilities were found, but the question remained, do students with disabilities feel welcomed and included in the programs provided by this campus service?
Monday, March 14, 2016
Blog co-editor Derek Black (South Carolina) has posted an article on ssrn, Averting Educational Crisis (Washington Law Review, forthcoming). In the article, Prof. Black argues that judges' reluctance to intervene in education disputes, during and after the recession, has devalued the constitutional right to education around the country. From the abstract:
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.
Tuesday, February 9, 2016
Nancy Chi Cantalupo (Barry, Dwayne O. Andreas School of Law) has posted her essay, For the Title IX Civil Rights Movement: Congratulations and Cautions (January 22, 2016), Yale Law Journal Forum, Forthcoming on SSRN here: From the abstract:
The Yale Law Journal's Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
This push to criminalize Title IX is evident in three groups of recent state and federal legislative proposals, including efforts
(1) to import criminal due process requirements into campus disciplinary and grievance proceedings,
(2) to mandate that school officials refer all reports of sexual violence, including through the school's Title IX system, to law enforcement, and
(3) to require colleges and universities to adopt "affirmative consent" or so-called "yes means yes" policies. The first two proposals conflict with and dangerously undermine Title IX's equality mandate, but the effect of the third is more equivocal. This Essay considers closely each one of these criminalization efforts and briefly propose two methods of retaining the benefits of affirmative consent policies while minimizing the damage they could do to Title IX rights.
Friday, January 15, 2016
The most recent issue of the Columbia Journal of Race and Law has a couple of pieces on the discriminatory impact that certain college admissions policies have on students of color. The abstracts are available in Volume 5 at the Journal's website.
Shawn Ho (Legal Service Officer, Singapore) adds to the scholarship on negative action against Asian American students in college admissions in A Critique of the Motivations Behind Negative Action Against Asian Americans in U.S. Universities: The Model Victims, 5 Colum. J. Race & L. 79 (2015). Ho writes, "the tensions arising from negative action flow from the Supreme Court’s adoption of a pure diversity rationale for affirmative action; it is necessary to have a more nuanced conception of college diversity that remains true to the spirit of remediation for America’s legacy of racial injustice while simultaneously seeking to dismantle stereotypes and racism." He also explores a potential motivation (however misguided) of admissions officials to limit the number of Asian-American admissions to protect Asian American students from racial resentment.
In the student note, Bars to Education: The Use of Criminal History Information in College Admissions, 5 Colum. J. Race & L. 145, 146 (2015), Rebecca R. Ramaswamy make the case for limiting the use of criminal history information in college admissions and how "the purported educational necessity behind this practice can be achieved through less discriminatory means.
Wednesday, January 13, 2016
Prof. Kyle C. Velte (Texas Tech) examines the decade-long constitutional challenge to Colorado's school-finance system in A Tale of Two Outcomes Justice Found and Lost for Colorado's Schoolchildren, 12 Legal Comm. & Rhetoric: JALWD 115, 115-17 (2015). Velte uses narrative theory to analyze Lobato v. State, in which school districts, schoolchildren, and their parents challenged the inequity between between Colorado's wealthy and poor school districts. From the introduction:
This is a story about a story. It is the story of a gripping trial, scores of pro bono attorneys collaborating--in a way rarely seen since the 1960s Civil Rights Movement--on a civil-rights case for justice, access, and equality for all of Colorado's schoolchildren. It is the story of the thrill of a historic win, and of an agonizing defeat. It is the story about school-finance litigation as the perfect frame for understanding the power of and importance of legal storytelling. In the end, this story about a story demonstrates that a story lost is justice lost. It illustrates that when courts choose not to hear the stories of plaintiffs in school-finance litigation, justice for those plaintiffs, and for all of the participants in the public-education system, is lost and the historic divides between wealthy and poor school districts continue in ways to deprive children in poor school districts with a constitutionally adequate education.
This article tells the story of one case--Lobato v. State, in which dozens of school districts, schoolchildren, and their parents challenged the constitutionality of Colorado's state-wide public school funding system--and analyzes the impact of the stories told in that case to both the trial court and the Colorado Supreme Court through the lens of narrative theory.
The article's goals are two-fold. First, it applies three, intersecting, story types--a “Story of the Parties,” a “Story of the Process,” and a “Story of the Law”--to analyze how judges are influenced by story and concludes that trial courts can be influenced through the use of a powerful justice narrative told through a Story of the Parties frame. Analysis of judges' acceptance or rejection of stories through a school-finance case study adds to scholars' and practitioners' understanding of the role of stories and “narrative reasoning” in both litigating and judging.
Second, the article posits that when compelling Plaintiff Stories are told in such cases, and when courts choose to hear those Plaintiff Stories and to elevate those stories over the Story of the Process and the Story of the Law, students and school districts will prevail. However, when, as in Lobato, courts choose to minimize--in fact, ignore--the call of those Plaintiff Stories and instead choose to elevate the call of “law” stories or “process” stories, the loss of Plaintiff Stories means the loss of justice or, at minimum, the delay or deferral of justice.
Monday, December 7, 2015
Teacher tenure lawsuits that allege that tenure prevents school districts from firing ineffective teachers have been discussed on this blog here and here. Two recent student journal notes that discuss two prominent cases, Vergara v. California and Davids v. New York, are excerpted below.
Michael J. Dejianne, The Right to Education: Reconciling Teacher Tenure and the Current State of Public Education, 46 Seton Hall L. Rev. 333, 334-35 (2015).
Some of the most controversial legislation surrounding education policy is teacher tenure statutes. Tenure is an employment protection awarded to teachers, the qualifications of which vary by state. Though the right to tenure does not technically create absolute immunity from dismissal, tenure reform advocates argue that some state statutes protect ineffective teachers from termination and thereby directly harm the quality of education. Overturning these statutes has proven to be difficult, especially when state supreme courts offer education the lowest level of equal protection analysis. In August of 2014, a California district court held that certain state teacher tenure statutes violate the California Constitution. In Vergara v. State of California, Judge Rolf Treu held that the challenged teacher tenure statutes detracted from the quality of California's education and enjoined their enforcement. Because California considers education a fundamental right, state courts must apply the highest level of equal protection analysis. Plaintiffs in New York subsequently challenged state teacher tenure statutes in a similar fashion. With the upcoming appeal of the Vergara decision and a trial scheduled in 2015 for Davids v. New York, it is important to analyze whether teacher tenure statutes detract from the quality of education and therefore violate a state's constitution. This Comment aims to answer these questions, examine the plaintiffs' arguments in Vergara and Davids, and evaluate the effectiveness of New Jersey's recent teacher tenure reform. Ultimately, this Comment advocates for courts to accept the plaintiffs' arguments, recognize the states' teacher tenure statutes as void, and direct the California and New York legislatures to adopt an approach similar to New Jersey's recent reform.
Michele Aronson, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393, 395-96 (2015).
This Note evaluates the promise of teacher tenure lawsuits in state courts to improve student achievement, and argues that lawsuits such as Vergara will ultimately be unsuccessful in doing so. The Note draws on lessons from education litigation reform efforts over the last seventy years, particularly school finance litigation. Part I provides background information about the persistent problem of poor student achievement in American public education in the last seven decades, and describes school finance litigation as the major reform effort to improve student achievement. Part II discusses Vergara and teacher tenure litigation more broadly as the newest wave of litigation attempting to improve student achievement. Part III compares teacher tenure litigation to school finance litigation and proposes that teacher tenure litigation will likely be unsuccessful in improving student achievement in the United States for the following four reasons: (i) courts will find that teacher tenure lawsuits present a nonjusticiable political question; (ii) plaintiffs in teacher tenure lawsuits will lose on the merits, especially in states that do not recognize education as a fundamental right; (iii) courts cannot fashion meaningful remedies for plaintiffs in teacher tenure lawsuits; and (iv) even if plaintiffs in teacher tenure lawsuits surmount those obstacles, the lawsuits will not significantly improve student achievement because the complicated factors that affect student achievement are beyond the scope of teacher tenure laws.
Tuesday, November 24, 2015
Yesterday, the University of South Carolina announced that it will establish a Center for Civil Rights History and Research to chronicle the contributions of the Palmetto State to the American civil rights movement. It will be the first single entity dedicated to telling South Carolina’s civil rights story. Congressman James Clyburn, the state’s first African-American member of Congress since Reconstruction and the assistant House Democratic leader, also announced that he will donate his congressional papers to the new center. For education scholars, the center will be particularly important, as South Carolina holds an out-sized role in the history of desegregation. Most obviously, Briggs v. Elliot was the deep-South companion case to Brown v. Board. Clarendon County, where Briggs arose, still carries this history. It has been the locus of the state's school funding litigation for the past two decades.
As just a tease of what is to come from the center, I offer this picture of the original complaint in Briggs v. Elliot. Having spent almost the entirety of my scholarly career on a computer and now being able to freely access historical materials in pdf. from the convenience of my office, seeing this complaint and the handwritten signatures on it was stirring. Unfortunately, my picture can do no more than offer you easy electronic access, but I invite you all to visit the Center in the future as its work unfolds. More here.
Wednesday, November 18, 2015
Harpalani on Fisher v. University of Texas at Austin (Fisher II)
Prof. Vinay Harpalani (Savannah) has posted a policy issue brief on Fisher v. University of Texas at Austin (Fisher II) on SSRN. This term, the Supreme Court will decide in Fisher II whether UT’s admissions policy, which considers race in its admissions decisions, is sufficiently narrowly tailored to further the university’s interest in diversity. In his policy brief, American Constitution Society for Law and Policy Issue Brief: Defending the Constitutionality of Race-Conscious University Admissions (October 29, 2015), Prof. Harpalani “offers proposals to universities, policymakers, and advocates who seek to defend the use of race-conscious admissions policies in the future.” His policy brief is excerpted below:
The basic constitutional question around race-conscious university admissions is relatively simple. Under the Equal Protection Clause of the Fourteenth Amendment, can a university consider an applicant’s race when making selective admissions decisions? For a university to use race as part of its admissions process, it must meet the strict scrutiny test. Its race-conscious admissions policy must fulfill a compelling state interest, and the policy must be narrowly tailored to meet that interest. Nevertheless, the nuances of strict scrutiny—as applied to race-conscious university admissions— have become quite complicated and contentious. Given the politically charged nature of race in America, universities, policymakers, and advocates need to understand constitutional doctrine and how it both intersects with and diverges from the political debates on affirmative action.
The Supreme Court heard some of the arguments on qualitative diversity in Fisher (I), but this time it will likely rule on them. The baseline issue here is the standard of review, and in accordance with its Grutter and Fisher (I) precedents, the Court should defer to UT on defining its diversity-related educational goals, such as the benefits of qualitative diversity. Such benefits are part of a university’s compelling interest in diversity: its educational goals and mission. In Fisher (I), Justice Kennedy’s majority opinion stated: “A court may give some deference to a university’s ‘judgment that such diversity is essential to its educational mission,’ provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision.” Qualitative diversity is on its face more than just racial balancing, as the whole point is to achieve diversity within racial groups rather than particular numbers or percentages of each racial group. Additionally, there are clear reasoned, principled explanations for seeking qualitative diversity, in terms of its educational benefits: it serves to break down racial stereotypes and to reduce racial isolation.
Hemel and Louk on Friedrichs v. California Teachers Association
Profs. Daniel Hemel (Chicago) and David Scott Louk (Yale) have posted Is Abood Irrelevant?, 82 University of Chicago Law Review Dialogue (Forthcoming) on SSRN about the Supreme Court's grant of certiorari this term to decide Friedrichs v. California Teachers Association, discussed on the blog here. Some believe that the Court granted certiorari in Friedrich to overrule or modify Abood v. Detroit Board of Education (1977), which held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” If Abood is overruled, that decision is expected to impact teachers' unions' financing and thus, the unions' political power. But Profs. Hemel and Louk's argue that Friedrichs may not make that much of an impact. Their abstract is excerpted below:
Many observers predict the Court may use Friedrichs as an opportunity to overrule Abood, with the consequence that public-sector unions will lose the ability to deter free-riding by nonmembers. We take no position on whether Abood will, or ought to, survive. Instead, we present a novel alternative mechanism to address the free-rider problem in public-sector workplaces — a mechanism that could be utilized even if Abood is overturned. We suggest that if a public-sector employer wants to make sure that a labor union is compensated for the cost of representing nonmembers, the employer can reimburse the union for those expenses directly. To offset the cost of this direct payment, the employer can reduce each employee’s salary by the employee’s pro rata share of the union’s bargaining expenses, while also freeing employees from the obligation to pay agency fees. This “direct payment alternative” would seem to accomplish the same objective as existing agency shop arrangements: it would prevent non-union members from reaping the benefits of union representation without sharing the costs. And while the wages of public-sector employees would be reduced by their pro rata share of their union’s bargaining costs, existing agency shop arrangements already reduce wages by that amount, because employees must pay their pro rata share in the form of union dues or agency fees.
In fact, our direct payment alternative might leave public-sector employers and employees better off than existing agency shop arrangements. First, the direct payment alternative eases the First Amendment concerns raised in Friedrichs: a direct payment to the union would likely qualify as “government speech,” and would thus be subject to less stringent scrutiny under present First Amendment doctrine. Second, the direct payment alternative would bring with it favorable federal tax consequences for state and local government employees. An employee’s pro rata share of union bargaining expenses would not be included in gross pay for purposes of Social Security and Medicare taxes, and would not be included in adjusted gross income for purposes of personal federal income taxes. Most public-sector employees would fare better on an after-tax basis if their employers adopted the direct payment alternative instead of the agency shop arrangement.
In this short essay, we compare and contrast the basic features of the agency shop and the direct payment alternative, considering the constitutional, economic, and political factors that might lead state and local governments and public-sector unions to choose one approach over the other. We present several hypotheses drawn from behavioral economics and political psychology — and, in particular, from the emerging literature on the “salience” of taxes and fees — that might explain why employers and unions have thus far opted for agency shops. We close by considering the practical consequences of a possible Supreme Court decision overruling Abood. We conclude that while Abood is not entirely irrelevant, the availability of the direct payment alternative suggests that the impact of overruling Abood may be muted.
Wednesday, November 11, 2015
Professor Bernard James (Pepperdine)'s essay, T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California, 101 Iowa L. Rev. 343 (2015), is available here. The essay discusses how Riley v. California's cell phone privacy decision applies to school searches of the digital contents of students' smart devices. Excerpted from the essay:
Except in cases both rare and egregious, most student searches are upheld because “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and [courts] have respected the value of preserving the informality of the student-teacher relationship” [as the Supreme Court held in New Jersey v. T.L.O.]. Riley modifies T.L.O., stopping just short of requiring school officials to obtain warrants to justify searching students’ smart devices. The single most important element of this reconciliation is the “reasonable scope” limitation on school searches already built into the T.L.O. framework.
Riley’s primary effect on T.L.O. is to make more rigid the “reasonable scope” limitation on school discipline involving student cell phones and tablets. What emerges is an altered T.L.O., prohibiting searches of cell phones and smart devices unless the educator has the additional justification of reasonable suspicion of danger or reasonable suspicion of the student’s resort to the device as a hiding place for evidence of wrongdoing.
The guiding principle going forward is grounded in both logic and rule of law by carefully applying the decision of the Court from another higher- order privacy case—the strip search decision of Safford Unified School District #1 v. Redding. Hence, the expectation of privacy students possess in the digital contents of their cell phones after Riley is now at least equal to the higher- order privacy interest that prohibits strip searches by educators without additional justification. Despite this increased rigor, the most unanticipated consequence of Riley is the modest practical constraint on school disciplinary policies. When the fundamentals of school discipline and the educators’ duty to protect students are properly accounted for, the increase in student autonomy is not as much as one might imagine at the outset.
Monday, November 2, 2015
Prof. Jill C. Engle (Penn State) has posted Mandatory Reporting of Campus Sexual Assault and Domestic Violence: Moving to a Victim-Centric Protocol that Comports with Federal Law on ssrn. Thanks to CrimProf Blog for the tip. Excerpted from the introduction:
Interest in getting campus reactions to [sexual assault] "right" is at an elevated level nationwide in the wake of certain high profile allegations of sexual violence at numerous colleges, including Columbia, Vanderbilt, Yale, Florida State, and the University of Virginia. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.
Wednesday, October 21, 2015
Paulina Haduong, Zoe Emma Wood, Sandra Cortesi, Leah Plunkett, Dalia Topelson Ritvo, and Urs Gasser, Harvard University - Berkman Center for Internet & Society. Excerpted from the abstract:
Building off several prior working meetings which mapped and cthe Berkman Center for Internet & Society’s Student Privacy Initiative spoke with educators, policy makers, and industry representatives in May 2015 about the new and rapidly evolving ecosystem of networked technology being used with education (“ed tech”). In order to evaluate the challenges and opportunities fostered by the next generation of ed tech, participants were asked to consider four layers of the ed tech ecosystem: technological infrastructure, data, organizational structures, and norms and values. Keeping these layers in mind, discussion ranged widely across numerous themes, reflecting the participants’ diverse backgrounds and perspectives. This report seeks to summarize the conversation’s main themes and highlight suggestions for future action. In the following section, the main themes and observations are considered, including issues dealt with explicitly and at length, in addition to those that more quietly (and perhaps implicitly) surfaced at multiple points during the day. And although the third section concerns suggested areas for moving forward, these are meant to be understood as key highlights, and not a comprehensive summary. Available at SSRN: http://ssrn.com/abstract=2638022.
Using Michigan's attempt to raise money through tax increases for Detroit's education system as a case study, Shera Avi-Yonah and Reuven S. Avi-Yonah (Michigan) conclude that states are unable to adequately to correct the imbalance in educational equality between inner-city and suburban school districts. The authors propose that
the only solution is a federal solution. As President Nixon proposed in 1972, the United States should adopt an “EducationValue Added Tax” (E-VAT) and use the revenues to equalize per student school funding across the country, as well as funding universal free public pre-K programs (such as the ones instituted by Mayor DeBlasio in NYC) and universal free public colleges for in-state residents (as used to be the case in California). This, we will argue, will do more to address the root causes of lack of equality of opportunity in America than any other potential use of revenues from a federal VAT. Available at SSRN: http://ssrn.com/abstract=2636728
Frederick P. Aguirre (Judge, Superior Court of Orange County, Kristi L. Bowman (Michigan), et al. -
School desegregation is not just a "black and white" issue, and in fact it never has been. In 1931, a county court in Lemon Grove, California ordered a school district to stop segregating its white and Latino students. Fifteen years later in 1946, a court reached the same result in Mendez v. Westminster, becoming the first federal court to order the desegregation of schools. In this piece, Gonzalo Mendez and Sylvia Mendez (both now retired) recall their experiences as the children whose parents initiated the groundbreaking Mendez litigation, and the way in which their parents remembered the litigation. Sandra Robbie, who wrote and produced the Emmy-award winning documentary about the case, discusses its historical context. Frederick Aguirre, now a judge, reflects on the legal and personal significance of the decision. Philippa Strum, author of a book about the case, considers the unique challenges and rewards of writing about school desegregation cases. Kristi Bowman facilitates these various reflections and weaves them together. Available at SSRN: http://ssrn.com/abstract=2629146
Thursday, October 15, 2015
Deborah Tuerkheimer (Northwestern) has published Rape on and Off Campus, 65 Emory L.J. 1 (2015). The article argues that the criminal justice system’s treatment of non stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. The abstract is below:
The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. Unnoticed, however, is a profound disconnect between cultural norms around sex and the legal definition of rape. The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape — that is, non- stranger rape — to a place beyond law’s reach. Of special concern, the dominant statutory approach misconceives or overlooks entirely the role of consent, which has become central to popular and political discourses around sexual assault. In the midst of increasing moves on campus to codify affirmative consent standards (“yes means yes”), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law’s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent’s meaning. In stark contrast, the criminal justice system’s treatment of non- stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.