Monday, April 27, 2015
Thursday, April 9, 2015
New Book on Education Policy: Race to the Bottom: Corporate Reform and the Future of Public Education
The Washington Post has a summary of a new book, Race to the Bottom: Corporate Reform and the Future of Public Education (Apr. 2015) by Michael V. McGill, professor of school leadership at Bank Street College of Education and former superintendent of the Scarsdale, NY schools. In his summary, McGill challenges the modern school reform movement's "silver bullet strategies" that have produced only modest gains in raising standardized test scores and closing achievement gaps. These efforts, he argues, have only succeeded in creating a divisive environment that has undermined the quality of education. Among some concrete suggestions for invigorating educators and school districts, Professor McGill proposes three broad areas of change for education policy:
- recognizing that a strategy of audit and control cannot produce the results of the same quality that human development can, let alone liberate the talent necessary to create an education for the 21st century;
- offset economic disparities and racial discrimination through adequate education funding; and
- re-engaging the partners in the education enterprise—governments, localities, universities, the research community—in relationships that are both authentic and reciprocal, so that the parties respect and draw on each other’s wisdom and energy.
Read Professor McGill's summary of Race to the Bottom here.
Friday, March 20, 2015
Professor Jason P. Nance (Florida) has posted Student, Police, and the School-to-Prison Pipeline, Washington University Law Review, forthcoming, on SSRN here. In his article, Nance empirically reinforces informal observations about the growing use of police in schools: that more children are ending up in the criminal justice system for infractions that would have been resolved previously without police officers. Lawmakers. parents, and school boards pressed for laws to increase the presence of police officers to protect students from mass gun violence, such as the attacks in Columbine and Sandy Hook. But laws intended to protect students from gun violence and external threats has resulted in law enforcement being overused as a first response to internal rule breaking. Nance argues that "not enough attention has been given to the potential negative consequences that these new laws may have on students and the school-to-prison pipeline." Below is an excerpt from Student, Police, and the School-to-Prison Pipeline:
Drawing on recent restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically-sound methods. ... The empirical analysis reveals that, even after controlling for (1) state statutes that require schools to report certain incidents to law enforcement, (2) general levels of criminal activity and disorder that occur at the school, (3) neighborhood crime, and (4) other demographic variables, a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including seemingly minor offenses. This finding has serious implications as lawmakers and school officials continue to deliberate over whether to use their limited resources to hire more law enforcement officers to patrol school grounds.
[T]his Article urges lawmakers and school officials to use their resources to adopt alternative measures to promote school safety instead of resorting to measures that rely on coercion, punishment, and fear. This is especially important when such measures tend to push students out of school and into the juvenile justice system, which can have such devastating, long-lasting consequences on the lives of students. A growing body of research suggests that programs that promote a strong sense of community and collective responsibility enhance school safety much more effectively than police officers and other strict security measures without degrading the learning environment. And while these alternative measures may not prevent a determined, deranged individual from harming members of the school community, the rarity of these events cannot justify the enormous amount of resources that would be needed to protect students at all times and in all places while they are at school. Indeed, in the wake of highly-publicized acts of school violence, the public often forgets that schools remain among the safest places for children.
Tuesday, March 17, 2015
Scholarship: Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws
Wednesday, December 3, 2014
The Mississippi Law Journal's symposium edition focusing on education law is now available at 83 Miss. L.J. 671 (2014). Although the symposium edition covers a range of national education issues, it comes at an important time in Mississippi, as the state faces an education funding lawsuit and as its governor and lieutenant governor square off this week against state education officials over scrapping the Common Core standards that the state adopted in 2010. The introduction by Prof. Kerry Brian Melear (Mississippi) and Mary Ann Connell summarizes the symposium's articles:
Wednesday, November 5, 2014
Scholarship: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts
The paper that received the George Jay Joseph Education Law Writing Award from the Education Law Association is available now on Lexis: Matthew Saleh, Public Policy, Parol Evidence and Contractual Equity Principles in Individualized Education Programs: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts, 43 J.L. & Educ. 367 (2014). The Joseph award recognizes excellence in education law scholarship by law students or graduate students of education. Cribbed from the paper's introduction:
Under the Individuals with Disabilities Education Act, school districts are required by law to create Individualized Education Programs (IEPs) for qualifying students to help ensure these students receive a Free and Appropriate Public Education (FAPE). This paper makes the argument that courts should derive parties’ intended agreement from the text contained within the "four corners" of the written IEP and not from extrinsic evidence. Many districts and even state education departments openly favor vague litigable terminologies in IEPs, and most parents simply lack the sophistication to understand the legal problems they are creating for themselves down the line. Using the four corners rule to interpret IEPs would not be altogether different than the tack taken by courts towards construing boilerplate language in other types of contracts where: (a) one party has expertise in the technical language used; (b) the other party is unsophisticated as to the "obscure verbiage" utilized in the instrument; (c) the more sophisticated party played a disproportionate role in drafting the instrument; and (d) the court determines that the boilerplate terminologies do not adequately represent the "intent" of the less sophisticated party to the instrument. The applicability of such rules of interpretation to the IEP context, in conjunction with the four corners rule, would have a positive influence on the effectiveness of the IEP as a proactive means for agreeing to educational services without having to resort to costly, adversarial, and inefficient dispute resolution procedures.
Tuesday, October 7, 2014
New Legal Scholarship: The Business of Charter Schools, NCLB Waivers, Expanding Vouchers, and Transgendered Student Legislation
The new issue of BYU's Education and Law Journal is out and includes the following articles:
Patrick J. Gallo, Jr., Reforming the "Business" of Charter Schools in Pennsylvania, 2014 B.Y.U. Educ. & L.J. 207 (2014).
Gallo addresses the current state of the charter school system in Pennsylvania and the need for reform. Summarizing some of the serious issues facing the charter system in Pennsylvania, the author states:
There are now more than 175 charter schools in Pennsylvania with over 105,000 students and approximately 44,000 more students on waiting lists. In addition, roughly 25 percent of the student population in the Philadelphia School District attend public charter schools. Moreover, government financed charter schools present a significant opportunity for profiteers looking to cash in on this modern day "gold rush," and, with very little oversight, Pennsylvania public charter schools have become fraught with "chicanery and greed . . . [,] excessive executive salaries . . . [,] nepotism, and [dubious] financial and real-estate transactions.
Monday, September 15, 2014
The editors of the journal shared the following with me and a particular interest in education:
The Richmond Journal of Law & the Public Interest is seeking submissions for our 2014-2015 volume. We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.
Thursday, September 11, 2014
Although Education Law Prof Blog editor Derek Black (South Carolina) has referred to his scholarship in discussing the ED's "big waiver" policies, I don't think that we have posted his new paper, Federalizing Education by Waiver? (forthcoming Vanderbilt Law Review). In the paper, Prof. Black examines how NCLB waiver policies exceed Secretary Duncan's constitutional and statutory authority. The abstract is below, and the paper may be downloaded from SSRN here.
In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the control of the federal government.
This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary’s statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states’ inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.
Thursday, August 14, 2014
The Journal of Law & Education is currently accepting manuscripts for publication in its 2015 volume. Manuscripts should be sent to the Journal at email@example.com. Questions about possible submissions may also be directed to Professor Josie Brown, Co-Executive Editor of the Journal, at Brownjf@law.sc.edu.
Josie F. Brown
Co-Executive Editor, Journal of Law & Education
Associate Professor of Law
University of South Carolina School of Law
Columbia, SC 29208
Monday, April 14, 2014
Journal of Law and Education Explores "Gay Talk," Disability Identification, and Cell Phone Searches
The Journal of Law and Education's new issue is available. The table of contents and article summaries are as follows:
Gay Talk: Protecting Free Speech for Public School Teachers
Stephen Elkind and Peter Kaufman.................................................................................... 147
Due to the harm free speech restrictions on teachers can cause students, this Article argues that when the Supreme Court revisits the question it left open in Garcetti v. Ceballos, it should create an exception for both university professors and public school teachers. An educator exception to Garcetti would mean that teachers’ speech to students about homosexuality is protected under the First Amendment if it satisfies the two-step Connick-Pickerington test, which governed public employees’ speech before Garcetti. At the heart of this Article is the idea that Garcetti’s broad effect will prohibit discussions on controversial matters from taking place in the public school classroom.
Education Clauses in Corporate Charters: How Child Welfare Law Confronted the Industrial Revolution
Jeff Lingwall........................................................................................................................ 189
This Article explores the history of corporations educating children in the U.S. through education clauses in corporate charters and other methods used to confront the emerging industrial order’s effect on children. This Article traces this history, beginning with colonial instruction laws, through corporate charters, and later, to more general instruction laws. The second section examines the state of colonial instruction laws and early corporate charters. The third section explores the history of educational clauses and alternative methods of educating factory children, giving historical evidence to suggest why some states employed this use of the corporate form while others did not. The fourth section explores the decline in apprenticeship and the rise of general compulsory attendance laws.
Introduction−A Response to Severely Discrepant Intervention?
Perry A. Zinkel.................................................................................................................... 225
Scientifically Supported Identification of SLD Using RTI: A Response to Colker
Amanda M. VanDerHeyden, Joseph F. Kovaleski,
Edward S. Shapiro and David T. Painter........................................................................... 229
This counterpoint to Ruth Colker’s review of controversies regarding how students identified as having a specific learning disability (SLD) can be most reliably identified and taught elaborates on notable points of disagreement. Our first point of disagreement pertains to Colker’s presentation of the current IDEA requirements related to the identification of students with SLD. Secondly, we disagree with Colker’s perspective that the inclusion of research-based intervention (RTI) was motivated by cost-savings and politics rather than science. Third, we disagree that universal screening tools can sensitively and accurately sort children into SLD and non-SLD groups. Our fourth point of disagreement is with Colker’s perspective regarding the need for IQ assessment to inform intervention selection. Fifth, we disagree that RTI will disenfranchise large groups of students who have above average abilities but have average achievement. Sixth, we disagree with Colker’s perspective that the declining incidence of SLD is caused by the implementation of RTI. Finally, we disagree with Coker’s urgency to provide the diagnostic label of SLD .
Joshua Weishart's new article, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477 (2014), is now available on Westlaw. For those interested in school finance and equal opportunity, it is a must read. It is probably the most in-depth treatment of the theory behind school finance and educational opportunity published in the last one to two decades. Professor Weishart focuses on what others have only hinted at: the reciprocal relationship between equality and adequacy. As such, he proposes that our approach should be to deliver "adequately equal and equally adequate" educational opportunities (rather than just equal or adequate education). His abstract is as follows:
A debate about whether all children are entitled to an “equal” or an “adequate” education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.
Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their states' constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to endorse hybrid equality-adequacy approaches. Still, the debate persists over seemingly intractable conceptual precepts and their political and legal ramifications.
Tracking the philosophical origins and evolution of equality and adequacy as legal doctrines, I explain the significance of their points of convergence and argue that the few points of divergence are untenable in practice. Equality of educational opportunity should not be interpreted as pursuing equal chances for educational achievement for all children, because that ideal is infeasible. Nor should educational adequacy be interpreted as completely indifferent to objectionable inequalities that can be feasibly curtailed. Properly conceived, equality and adequacy are not merely congruent but reciprocal. That is, children are owed an education that is adequately equal and equally adequate.
Tuesday, March 18, 2014
AALS Call for Papers: Dead Upon Birth: The Inter-Generational Cycle of Thwarted Lives in America’s Poorest Neighborhoods
The AALS Section on Children and the Law is has announced a Call for Papers for the AALS 2015 Annual Meeting. The topic is Dead Upon Birth: The Inter-Generational Cycle of Thwarted Lives in America’s Poorest Neighborhoods.
“The D.U.B.” is a nickname southside Chicago residents have given a neighborhood exemplifying a tragic reality in many of this country’s urban and rural areas: Children are born into struggling families in deeply dysfunctional neighborhoods and have little chance for full and flourishing lives. In some parts of America, a boy born today is more likely to end up in prison than college and a girl is more likely to become drug addicted than married. Many parents keep young children in “lockdown” at home when they are not in school, to shield them for as long as possible from gang recruitment and gun crossfire. This panel will discuss the economic, political, and cultural causes of concentrated poverty, crime, and disease and alternative strategies for sparing children from it. Panelists will address, from a child-centered perspective, issues such as “neighborhood effect” on child development, state response to parental incapacity, housing policy, relocation programs, foster care and adoption, inadequate education, school disciplinary policies, access to healthcare, employment opportunities, substance abuse and mental illness, criminal law enforcement and incarceration, and societal responsibility for the circumstances in which children live.
Cynthia Godsoe, Brooklyn Law School, will be moderating the panel, which already includes Elizabeth Bartholet (Harvard Law School), Josh Gupta-Kagan (University of South Carolina School of Law), and James Dwyer (William & Mary School of Law).
The fourth panelist will be selected from the call for papers. There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights on the panel topic. A paper may have already been accepted for publication as long as it will not be published prior to the Annual Meeting. The Section does not have plans to publish the papers, so individual presenters are free to seek their own publishing opportunities.
Deadline: August 15, 2014. Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Dwyer at firstname.lastname@example.org with “CFP submission” in the subject line.
Tuesday, February 25, 2014
R. George Wright's article, Post-Tinker, is now available at 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). The article argues that
the rise of computer communication by means of portable technologies [does not] necessarily condemn Tinker to irrelevance. It has recently been argued, for example, that "Tinker remains functional, and if properly applied to students' online expression, it can vindicate students' free expression interests while still allowing schools to properly regulate day-to-day student discipline and the educational process." And when we add in the options of modifying Tinker, as by abandoning either the first "disruption" prong or else the second "rights of others" prong, contemporary support for some version of Tinker is even broader.
At this point, however, it is fair, and indeed important, to ask about the likely consequences of radically abandoning Tinker. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion below pursues this question and eventually endorses just such a radical abandonment of Tinker. This is not an anti-student speech conclusion. It is instead a recognition of the importance of allowing public schools, if they so choose and within other constitutional and statutory bounds, to focus more on educational outcomes, equality, or other dimensions of the vital basic mission of contemporary public schools.
Wednesday, January 8, 2014
In The American Prospect this week, Richard Rothstein reviews Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality, a new book by sociologist Patrick Sharkey. Cribbing from the article: Sharkey’s evidence shows that low-income black children in the United States tend to be concentrated at the low end of the poverty line and are more likely to live in poor neighborhoods for multiple generations, as opposed to white children, whose family poverty tends to be episodic. For example, 48 percent of black families have lived in poor neighborhoods over at least two generations, compared to 7 percent of white families, and young blacks are ten times more likely to live in a poor neighborhood than their white counterparts. Sharkey argues that “the consequences of multi-generational exposure to concentrated poverty in neighborhoods of considerable violence, unemployment, single parenthood, environmental degradation, and hopelessness” compounds the effects of being poor. Sharkey presents evidence that “living in poor neighborhoods over two consecutive generations reduces children’s cognitive skills by roughly eight or nine points … roughly equivalent to missing two to four years of schooling.” Sharkey’s findings shed light on the factors that have stalled progress to close the African American educational achievement gap. Stuck in Place should also encourage conversation on the efficacy of federal K-12 education policies. Read the article here.
Thursday, December 19, 2013
A new article by Kristen Ulan examines the connection between home prices and school assignment zones, particularly in the context of school integration. She uses Charlotte, North Carolina, and Columbia, Maryland, as case studies to compare and contrast. Her introduction explains:
While price is a significant factor in purchasing real estate, more important is location. Different individuals have varied location requirements for their desired property. Younger individuals and couples without immediate family plans typically do not consider the assigned schools as much as a family with young children. Likewise, for those with young children, proximity to bars and nightlife is not as imperative as the local school district, neighborhood safety, and nearby children. The neighborhoods involved in this case note tend to attract families that care most about the school district and boundary lines. In Charlotte, North Carolina, there is a significant association between real estate prices and high school districting, whereas in Columbia, Maryland there is not the same association. Due to this, real estate prices for houses located in areas of proposed redistricting and border areas in Charlotte fluctuate and real estate in these areas tends to be underutilized. Because Columbia residents do not face the same fluctuation and uncertainty, there is greater incentive to fully utilize real estate by owners. The history of the areas suggests that this difference may lie in the different societal choices made forty years ago between integration or fighting integration in schools. Both counties' school board societal choice is still unfolding and the effects are much different in Howard County, which implemented voluntary integration, compared to Mecklenburg County, which fought to keep segregation all the way to the Supreme Court.
Her article offers fascinating and important analysis for anyone interested in the feasibility and politics of school integration. I would note, however, that it proceeds on a contested premise: that home location is tied to school assignment. As a practical matter, this is the case in the vast majority of districts. Thus, the premise has strong footing. But some integration policies disentangle home location from school assignment. In fact, that was exactly how the integration policies in Parents Involved v. Seattle Schools worked. Louisville, for instance, expanded the concept of neighborhood school. Students no longer had a single neighborhood school--traditionally the one closest to the home--but several from which to choose. This meant that a student's assignment zone was rather large.
This flexibility had an interesting effect on the housing market: there was not the same incentive to "buy into" a "desirable" neighborhood and, as a result, housing segregation actually declined. While the decline was small, the notion that housing segregation would decrease rather than increase in response to school integration is remarkable. My post on Greenville, SC, last month raises the same possibilities. Greenville has a completely open student enrollment process. All schools in the district are open to students from all locations. Historically, this type of plan has been dangerous for integration, unless specific controls and weights were built into the system. Somehow, however, Greenville has managed to make it work without weights. On the whole, its schools are effective and relatively integrated.
Ulan's article, nonetheless, makes an important contribution based on prevailing realities. The article's full citation is Kristen Ulan, How Uncertainty in the Redrawing of School Districts Affects Housing Prices, A Case Study: Comparing Neighborhoods in Charlotte, North Carolina, and Columbia, Maryland, 2 U. Balt. J. Land & Dev. 113 (Spring 2013).
Monday, December 9, 2013
Notwithstanding my railings on the current use of the NCLB waiver process and my suggestion that some waiver conditions are outside the scope of legislative authority, the issue remains complex and the opposing view worth considering. Earlier this year, David Barron and Todd Rakoff published In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013), which focuses on the constitutionality and virtues of the administrative waivers available under No Child Left Behind and the Affordable Care Act. The main thrust of the article is that, given the complexity of today's statutory and administrative state, the administrative waiver is nearly a necessity and something that works to both Congress and the Executive's advantage. Among other things, it helps Congress adapt laws to unforeseen circumstances and improves the political accountability of the executive branch. The abstract explains:
This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime--even one it knows may be waived--big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies' subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
The key question, however, is not whether the waiver is good policy (I believe I agree that it is), but whether it is constitutional. On this point, the tail seems to wag the dog in the article; good policy and practicalities motivate a favorable constitutional analysis. With that said, the article does give me serious pause in my initial conclusions about the constitutional issues. In this respect, the article is a success both in itself and for the administration.
A block quote of the conditional waiver analysis follows the jump.
Friday, November 8, 2013
The articles from Denver University's symposium on Keyes v. School District No. 1 are now available on westlaw. The symposium includes articles by Mark Tushnet, Kevin R. Johnson, Michael A. Olivas, Rachel F. Moran, and Phoebe A. Haddon, as well as memoirs by individuals personally connected to the events in Denver. While all address interesting topics, Mark Tushnet's keynote address and article, A Clerk’s-Eye View of Keyes v, School Dsitrict No. 1, 90 Denv. U. L. Rev. 1139 (2013), offer a particularly interesting account of the inner workings of the Court surrounding the case. Tushnet was clerking for Justice Thurgood Marshall when Keyes was decided. Relying on his personal experience and other new available materials from the Court, he explores the complexity of the Court's deliberations.
The story of these internal debates is not entirely new. Justice Powell's concurrence, for instance, explicitly reveals the depth of his disagreement with the Court. And, Bob Woodward and Scott Armstrong's book from 1979, The Brethren, also explored some of these divisions. Tushnet, however, best captures the doctrinal battles occurring on the Court and the personalities behind them. As he notes, seven out of eight justices found there to be a constitutional violation in Keyes. The fractured decision represented not so much a debate over what to do with Denver, but a fight over what Keyes would mean for places like Detroit and Boston.
Although not explicit in the opinion, the fight over busing largely drives the Court's final decision. Powell wanted to reject de jure versus de facto distinctions, but in doing so, he wanted to limit the available desegregation remedies, particularly busing. The majority wanted to keep busing as a way to affirmatively further integration. The only way it could get the votes to do that was by drawing a distinction between de facto and de jure segregation. That distinction would shield many districts from busing, but keep it well alive in throughout the south.
From my perspective , it is not clear that the Court fully appreciated the long term ramifications of its decision. The Court may have been too caught up in the times, which is understandable, and unsure of the best path in regard to its first northern desegregation case. Regardless, Keyes is later cited as the foundation for requiring intent to prove a constitutional violation in all racial discrimination cases. As a result, Keyes drew the line that placed the bulk of racial inequality in all areas of life off-limits. And while the de jure-de facto distinction may have saved busing in some districts (the evidentiary presumption in the case also became a powerful tool in the south), it created the principle by which to later place significant limits on desegregation. In effect, Keyes was the beginning of the end for desegregation.
All of the article titles and authors follow the jump.
Friday, November 1, 2013
Alexandra Muolo’s article, Not So Black and White: The Third Circuit Upholds Race-Conscious Redistricting in Doe ex rel. Doe v. Lower Merion School District, 58 Vill. L. Rev. 797 (2013), is now available on westlaw. Doe v. Lower Merion flew under the radar of most until the last minute. The case involved a school district with just two high schools and a minority population of around ten percent. The new student assignment plan split that minority community between the two high schools. Interestingly, the challenge to the race conscious redistricting came not from the white community but from the minority community.
In an analytically complex and extremely important decision, the Third Circuit held that Justice Kennedy’s concurring opinion from Parents Involved in Community Schools v. Seattle was the controlling opinion and, thus, race conscious plans that do not rely on individual race classifications to assign students are not subject to strict scrutiny. Within a few days of the decision, the Departments of Justice and Education issued policy guidance reaching the same conclusions themselves. In short, Doe v. Lower Merion is the most important post-Parents Involved decision available.
Muolo’s article offers an in-depth examination of this case, pointing out those key aspects of the redistricting process that made it constitutional. Muolo concludes on a practical note:
When school districts are faced with Equal Protection challenges, the first step of the court will be to determine the appropriate level of scrutiny. While race-conscious integration policies only demand rational basis review, the policies still must be rationally related to a legitimate state interest. Though there are several approaches that school districts can take to avoid constitutional challenge, Doe provides a practical example. By explicitly listing race-neutral grounds for redistricting--the Non-Negotiables and community values--Lower Merion School District was able to implement a race-conscious policy that was rationally related to the legitimate purposes outlined by the Board of Directors. In the case of student redistricting policies, therefore, practitioners must advise school districts to document the legitimate, race-neutral interests for redistricting. As such, the developers of the redistricting plan may also consider racial impact, which will foster integration.
Thursday, October 31, 2013
On valuing education, he says this stereotype is an assumption based on less parental involvement at the school building itself by low-income families, but he points out that the inability to be at school is caused by job, transportation, and other barriers poor families face, not a lack of interest. He says there is no information to infer that they actually value education less. The laziness stereotype is easily debunked by the fact that many poor families work more hours and jobs than other families. They just make less money. On substance abuse, he says data shows that wealthier families actually have a higher rate of alcohol and drug abuse than poor families. They, of course, also have more money with which to indulge.
The linguistic deficient, however, was the most interesting. He does not contest that lower income parents may have less formal vocabularies, which also manifests itself in their children’s oral communication. He does contest that they are less complex or necessarily eqaute to ignorance. He points to evidence that indicates oral vocabularies are not as closely linked to reading and writing vocabularies as one might think. In short, a child’s oral linguistics are not a limit on their ability to learn to read. This makes sense because, after all, reading is new to all kids, regardless of how well they might speak. Gorski acknowledges that low-income students do tend to start school with fewer reading skills than other students, but he argues this is a function of difference in access to quality pre-k educational opportunities, not necessarily their parents’ communication skills. His debunking of the bad parent stereotype is largely intertwined with the previous four points.
So why are these stereotypes so prevalent and where do they come from? Part of it, he says, is our