Tuesday, June 13, 2017

Scholarship on Teacher Tenure and Lawyers for Campus Sexual Assault Survivors

Articles on teacher tenure evaluations and appointment of attorneys for sexual assault survivors on campus were recently published in Drake Law Review. Summaries are below:

Jodi Wood Jewell (La Verne College of Law), From Inspection, Supervision, and Observation to Value-Added Evaluation: A Brief History of U.S. Teacher Performance Evaluations, 65 Drake L. Rev. 363 (2017)

In this article, Jewell explores the history of teacher tenure and the challenges in adopting new teacher evaluation methods. Excerpted from the abstract:

This Article shows the slow development of teacher performance reviews over time; it begins with a history of teacher evaluation from the colonial era to the present, discusses the introduction of Valued Added Modeling (VAM) to ensure student achievement, provides an overview of current teacher evaluation models and concludes by identifying policy considerations in creating accurate, comprehensive and fair evaluation systems.
Kelly Alison Behre (UC Davis Law), Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys, 65 Drake L. Rev. 293 (2017)

Behre proposes providing victims' attorneys to promote sexual assault survivors' choice and voice throughout overlapping legal processes of a campus sexual assault investigation to mitigate the secondary trauma felt by survivors. Excerpted from the abstract:

Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and college adjudicatory system--all sources of secondary trauma. This Article suggests that access to victim-centered, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings. Specifically, the Article argues that student victims would benefit from access to victims' attorneys at four distinct stages following a sexual assault: (1) the pre-reporting stage-to provide sufficient information and legal advice to ensure reports to law enforcement and colleges are intentional and provided with victims' informed consent; (2) the investigation stage--to ensure that student victims maintain agency throughout the investigation, help prevent unprofessional investigation techniques, and promote access to interim measures necessary to meet safety, privacy, and educational needs; (3) the hearing stage--to enforce victims' safety rights, amplify victims' voices in the proceedings, and reduce secondary trauma from victim-blaming questions and arguments; and (4) the post-hearing stage, including appeals and civil lawsuits--to provide representation in internal college appeals, lawsuits filed by the respondent or victim against the college, and retaliatory complaints or lawsuits filed against the victim, including defamation and harassment.

June 13, 2017 in Scholarship | Permalink | Comments (0)

Tuesday, May 2, 2017

Recent Scholarship on Student Data Privacy, Compensatory Education for ELL Students, and Racial Speech on College Campuses

Prioritizing Privacy in the Courts and Beyond (Cornell Law Review)

In this article, Babette Boliek proposes privacy law changes to encourage data collection entities "to either decrease collection of sensitive data or increase investment in privacy protections." As an example of the type of privacy issues that lax rules can create, the article uses the ongoing litigation of Morgan Hill Concerned Parents Assn v. California Department of Education, "where the otherwise FERPA-protected school records of an estimated ten million students were ordered to be disclosed—including addresses, social security numbers, birthdates, disciplinary records and test scores." The article is available on SSRN here.

The Right to Be Racist in College: Racist Speech, White Institutional Space, and the First Amendment (Law & Policy)

Wendy Leo Moore and Joyce M. Bell examine recent racial incidents on college campuses  "within a broader context of race and institutions, suggesting a connection between overt racist expressions and the more covert elements of neoliberal color‐blind racism." The abstract on SSRN is here.

Compensatory Education is Available to English Language Learners Under the EEOA (Alabama Civil Rights and Civil Liberties Law Review)

Kevin Golembiewski has posted a forthcoming article  that encourages courts to recognize that the Equal Educational Opportunities Act (EEOA) "permits awards of compensatory education—a powerful tool for remedying deficits that develop when a student’s educational rights are infringed." The article on SSRN is here.

May 2, 2017 in Scholarship | Permalink | Comments (0)

Monday, April 10, 2017

Article: Applying A More Protective Fourth Amendment Standard To School Restraint Claims

Amanda McGinn makes a case for courts to establish a clear constitutional standard for excessive-force claims against school resource officers in her recent article, School Discipline Practices That Will Shock You, Literally: A Reevaluation of the Legal Standard for Excessive Force Against Students, 54 Am. Crim. L. Rev. 627, 629 (2017). In her note, McGinn writes that courts should apply the Fourth Amendment's objective-reasonableness test to school discipline and take into account a school's interest in developing citizens, not just in maintaining control and safety. Not only does the use of force and restraint result in physical and psychological harm, but research shows that physical punishment makes it more, not less, likely that children will be defiant and aggressive in the future. Ultimately, McGinn calls for most forms of  restraint, such as stun guns, pepper spray, and handcuffs, would be found to be objectively unreasonable.


April 10, 2017 in Discipline, Scholarship | Permalink | Comments (0)

Monday, March 27, 2017

Recent Scholarship on Anti-Bullying and Anti-Gay Curriculum Laws

Recently posted articles on SSRN this month address First Amendment concerns in crafting anti-bullying laws and surveys anti-gay anti-gay provisions exist in the curriculum laws of twenty states, and in several provisions of a federal law that governs the distribution of $75 million in annual funding for abstinence education programs. Links to the articles and descriptions are below:

Emily Suski (South Carolina), A First Amendment Deference Approach to Reforming Anti-Bullying Laws, Louisiana Law Review (2017):

This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying by exploring the complicated nature of the problem, the interventions called for in response, [and] by examining the rationales for public school deference to suppress student speech.

Clifford Roski (Utah), Anti-Gay Curriculum Laws, Columbia Law Review (2017):

Now that anti-gay sodomy and marriage laws have been declared unconstitutional, anti-gay curriculum laws look anachronistic—remnants of a bygone era in which official discrimination against LGBT people was both lawful and rampant. Yet these laws remain on the books, they are still being enforced, and no court has had an opportunity to determine whether they are constitutional. This article develops the framework for a nationwide campaign to invalidate them. This article [also] introduces a new term to clear up the confusion surrounding this subject: anti-gay curriculum laws. In particular, this article identifies two types of anti-gay curriculum laws that scholars and advocates have overlooked: “promo hetero” laws and “abstinence until marriage” laws. The article concludes by explaining why LGBT advocates have waited until now to launch a campaign against anti-gay curriculum laws—and why they should not wait any longer.

March 27, 2017 in Scholarship | Permalink | Comments (0)

Friday, February 10, 2017

Scholarship: Tinker in the Digital Age; Restorative Justice's Transformation in Education

When Words Are the Weapons: Using Tinker, Bell, and Premises Liability to Keep Schools Safe in a Digital Age

Bethany Poppelreiter, a former special education teacher and current law student, writes on "balancing off-campus student speech with the problems it can cause on campus." Part of the article's abstract is below; the article is available on ssrn here.

This Article suggests for the first time that much of the confusion can be eliminated by utilizing a framework for analyzing off-campus student speech based on the well-rooted doctrine of premises liability coupled with relevant portions of Tinker and Bell. This approach calls for an emphasis based on the identity of the speech target. Such an approach not only ensures essential protections to student speech, but also safeguards the institution of education through protecting the most important aspects of the school environment: teachers and students.

Restorative Justice from the Margins to the Center: The Emergence of a New Norm in School Discipline

Thalia Gonzalez has posted an article on the transformation of restorative justice in school discipline. An excerpt of the introduction is below, and the article is available on ssrn here

[I]f restorative justice was once characterized as highly localized and aimed at addressing specific behavioral issues, this construction has transformed. Restorative justice is now understood as a philosophy and practice shown not only to address disproportionality in discipline and dismantle zero tolerance, but as importantly to, “create a climate that promotes healthy relationships, develops social-emotional understanding and skills, increases social and human capital, and enhances teaching and learning.” Thus, the purpose of this Article is two-fold: (1) to characterize how restorative justice has moved from the margins of education policy to the center, and (2) to explore the emergence and cascade of restorative justice though the norm life cycle as understood through the lens of theories of normative change.

February 10, 2017 in Scholarship | Permalink | Comments (0)

Tuesday, February 7, 2017

Scholarship on The Failure of Education Federalism and Procedural Due Process Rights of the Accused in Title IX Cases

Kristi Bowman:  The Failure of Education Federalism
Bowman's article uses Michigan's public education system to show the decline in public investment in education and the need for the federal government to "embrace a different model of federalism, cooperative federalism." Bowman writes, "In particular, the judiciary can create a federal floor of educational quality via Substantive Due Process and Equal Protection Clause jurisprudence, especially if it is willing to consider reviewing educational quality claims under a rational basis with bite standard." The article is available for download on ssrn.com here.
Tamara Rice Lave: Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases
The Obama administration's efforts requiring higher ed institutions to take steps to prevent campus sexual misconduct under Title IX is likely to wither regardless of who becomes the new education secretary (see Derek Black's take on the Education Secretary's confirmation hearings here). But the ED may be more willing to explore the area of Tamara Rice Lave explores in her article, Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases. In the article, Lave discusses how institutions may not be adequately protecting students' procedural due process rights and concludes by "considering how universities can more fairly and effectively respond to sexual assault." The article is available here.

February 7, 2017 in Scholarship | Permalink | Comments (0)

Monday, December 12, 2016

Children's Legal Rights Journal - Call for Papers Extended to January 15

The Children’s Legal Rights Journal invites articles submitted by January 15, 2017 that address issues that impact children. The call for papers is below:

Submission Details. We invite you to submit articles that address any of the prominent and current issues that impact children. Articles should be received by January 15, 2017. Submissions should be previously unpublished pieces based on original work. All submissions should be between 15 and 60 pages (double­spaced) and in Bluebook format.

About the CLRJ. The Children’s Legal Rights Journal is a national journal sponsored by Loyola University Chicago School of Law in cooperation with the National Association of Counsel for Children. We publish articles on a variety of children’s legal issues and we are the only journal in the country specifically addressing legal needs of children.

Contact Information. All submissions and questions can be sent directly to CHILDLRJ@LUC.EDU. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:

Erika C. Weaver
Solicitations Editor
25 E. Pearson, 11th Floor
Chicago, IL 60611
Phone: 312.915.6481
Fax: 312.915.6485

The CLRJ will publish one additional issue by the end of the academic year and we will be soliciting articles for that publication early next year.


December 12, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, November 1, 2016

Thomas Jefferson School of Law Student Writing Competition In Disability Law

For law students, medical students, and doctoral students interested in disability law, the Thomas Jefferson School of Law has launched an annual student writing competition focusing on disability law. The details are below. 

Thomas Jefferson School of law is pleased to announce the third Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.

 The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care. 

Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize.  Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner. All submissions must be submitted electronically to: cranewritingcompetition@tjsl.edu. All entries must be received by midnight, Pacific Standard Time, January 15, 2017. Winning submissions will be announced by April 15, 2017.  

For further details, visit the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Questions may be directed to Associate Dean and Professor Susan Bisom-Rapp, who will be coordinating the competition: susanb@tjsl.edu.

November 1, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, October 25, 2016

Derek Black Discusses Ending Zero Tolerance on Tavis Smiley Show

Screen Shot 2016-10-25 at 12.55.57 PMBlog editor Derek W. Black (South Carolina) discussed his book, Ending Zero Tolerance, last week on PBS's Tavis Smiley Show. In Ending Zero Tolerance, Professor Black argues for constitutional protections to check abuses in school discipline and proposes theories for courts to re-engage to enforce students’ rights and support broader reforms. In Ending Zero Tolerance, Professor Black uses stories about individual students, research, and case law to unearth the irrationality of some school systems' disciplinary policies -- and what courts can do to change that. Professor Black's video interview with Tavis Smiley is available here.

October 25, 2016 in Discipline, Scholarship | Permalink | Comments (0)

Monday, October 10, 2016

Call for Papers: Children's Legal Right Journal, Loyola Chicago


Children’s Legal Rights Journal

Submission Details. We invite you to submit articles that address any of the prominent and current issues that impact children. Articles should be received by December 1, 2016. Submissions should be previously unpublished pieces based on original work. All submissions should be between 15 and 60 pages (double­spaced) and in Bluebook format.

About the CLRJ. The Children’s Legal Rights Journal is a national journal sponsored by Loyola University Chicago School of Law in cooperation with the National Association of Counsel for Children. We publish articles on a variety of children’s legal issues and we are the only journal in the country specifically addressing legal needs of children.

Contact Information. All submissions and questions can be sent directly to CHILDLRJ@LUC.EDU. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:

Erika C. Weaver

Solicitations Editor

25 E. Pearson, 11th Floor

Chicago, IL 60611


Fax: 312.915.6485

October 10, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, September 20, 2016

Hilbert on Using State Constitutional Law to Reanimate Brown and Challenge School Segregation

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.

September 20, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, August 30, 2016

McAllister on Rethinking School Cell Phone Searches

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.


August 30, 2016 in Scholarship | Permalink | Comments (0)

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.

June 30, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, June 15, 2016

Scholarship: Black on Teacher Quality, Parker on School Segregation, and Robinson on Education Federalism

Black on Taking Teacher Quality Seriously

Derek Black (South Carolina) calls for a "deeper engagement of teacher quality" that accounts for "the pipeline into teaching, structural forces related to race and geography, the general desirability of the teaching profession, and the conditions under which teachers work" in his article, Taking Teacher Quality Seriously, William & Mary Law Review, Vol. 57, No. 2, 2016, available on SSRN. Prof. Black's abstract is below:
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.

Wendy Parker (Wake Forest) argues in her book chapter that the job of supporting school desegregation efforts have largely been left to federal judges as no other government action entity has consistently supported school desegregation. Prof. Parker's abstract for Brown's 60th Anniversary - A Story of Judicial Isolation, The Pursuit of Racial and Ethnic Equality in American Public Schools, Michigan State University Press, 2014, is below:
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.

Robinson on Disrupting Education Federalism

Kimberly Jenkins Robinson (Richmond) explores a theory for reconstructing education federalism in her article, Disrupting Education Federalism, Washington University Law Review, Vol. 92, No. 4, 2015, available on SSRN. The abstract is below:
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.

June 15, 2016 in Scholarship | Permalink | Comments (0)

Monday, June 13, 2016

Recent Scholarship: Killenbeck on Fisher II As Guidewire For Student Diversity Admission Policies

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.

June 13, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, May 4, 2016

Recent Scholarship

Campus Sexual Assault Adjudication and Resistance to Reform

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.

Sector Agnosticism and the Coming Transformation of Education Law

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. 

May 4, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, March 30, 2016

Scholarship: Connecting School Discipline Reform To The Right To Education

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.

March 30, 2016 in Discipline, Scholarship | Permalink | Comments (0)

Tuesday, March 22, 2016

Recent Scholarship On Race and Inclusion; School Resource Officers And Children With Disabilities

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.

March 22, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, March 16, 2016

Scholarship: Providing Counsel In School Discipline Cases; The ADA And Campus Recreation

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?

March 16, 2016 in Scholarship | Permalink | Comments (0)

Monday, March 14, 2016

Derek Black On Averting Educational Crisis

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.

March 14, 2016 in Scholarship, School Funding | Permalink | Comments (0)