Thursday, August 22, 2013
Several pieces in this week's featured scholarship focuses on the reality of resegregation in American schools and the struggle to realize the equality envisioned in Brown v. Board of Education. We start with a study of English language learners in Texas schools by two UT-Austin professors that is making an impact in the media and educators as the new school year begins.
Heilig and Holme (UT Austin): Nearly 50 Years Post-Jim Crow: Persisting and Expansive School Segregation for African American, Latina/o and ELL students in Texas.
University of Texas at Austin Professors Julian Vasquez Heilig and Jennifer Jellison Holme's study of school segregation in Texas shows that ELL learners are being isolated by racial, economic, and linguistic factors, suffering what has been termed “triple segregation.” Their study finds that despite nearly two decades of accountability policies, their statistical analyses show that a majority of ELL students in Texas still attend high-poverty and high-minority schools. Segregation by socioeconomic status (SES) and race and ethnicity is highly significant for predicting whether schools will be low performing relative to high performing.
From the abstract and summary of their findings:
Many school districts in the state of Texas have adopted “open enrollment” policies that allow students to transfer between schools within the same district. These policies, as research has shown, tend to advantage more well-resourced students (particularly because transportation is not provided with most such policies). Due to differences in cultural and social capital, it is likely that students whose home language is not English are less likely to take advantage of choice (Vasquez Heilig, 2011a) due to lack of familiarity with the application process.
One of the most significant contributions to segregation in schools, however, is housing. ELL students, who are often Latina/o, are increasingly residentially isolated in urban and, increasingly, suburban neighborhoods. As Gandara and Contreras (2009) observed, “Housing segregation has particularly onerous effects on Latina/o students learning English. When students’ lack appropriate language models and individuals with whom to interact in English, their acquisition of academic English is delayed." This lack of opportunity is exacerbated when students residing in high-poverty and linguistically isolated neighborhoods attend schools isolated by race/ethnicity, poverty, and language.
In conclusion, nearly 50 years since Jim Crow, the intensity of segregation in Texas schools is still largely problematic. Our statistical analyses show that a majority of ELL students in Texas attend high-poverty and high-minority schools. One positive note is that elementary schools serving ELL students are more likely to be high performing than low performing schools. However, this finding is tempered by the fact that as ELL students progress in the education pipeline in Texas, they are more likely to attend low performing middle schools and high schools (results not shown). Furthermore, ELLs enrolled in secondary schools ultimately have the highest dropout rates and lowest tests scores and graduation rates in Texas. Surprisingly, after almost two decades of Texas-style accountability, the overall finding that segregation by SES and race and ethnicity is still highly significant for predicting whether schools will be low performing relative to high performing suggests that high-stakes testing and accountability as systemic reforms have still not delivered as a cure-all in Texas.
Read the study at Sage Publishing here.
I can't decide whether it counts as news, since data has shown us for some time that poor and minority students are exposed to unequal educational opportunities and conditions, but a new poll out confirms that minority and poor parents are well aware of the unequal conditions they suffer. Yet, minority parents are interestingly optimistic citing that their children are receiving a better education than they did. Cribbing from the AP story by Philip Elliot and Jennier Agiesta:
Minority and low-income parents are more likely to see serious problems in their schools—from low expectations to bullying to out-of-date technology and textbooks—than those who are affluent or white, according to an Associated Press-NORC Center for Public Affairs Research Poll.
Overall impressions of the nation's schools and teachers are similarly positive among all groups of parents, but deep demographic differences emerge in the details of how parents see teachers, schools and even their own roles in their children's education.
The divisions fall along the familiar fault lines of income, education and race that drive so much of American life. In many cases, it's as though parents are looking at two very different sets of schools in this country.
Most parents say the school their child attends is high-quality and rate their children's teachers positively. White parents are only slightly more likely than others to give their child's school high marks, and parents of all races give their local schools similar ratings for preparing students for college, the workforce, citizenship and life as an adult.
A majority of parents say their children are receiving a better education than the one they received, but blacks and Hispanics feel more strongly than whites that this is the case. The poll also shows minorities feel they have a greater influence over their children's education.
And the ways parents assess school quality and the problems they see as most deeply affecting their child's school vary greatly by parents' race, education and income level.
Wednesday, August 21, 2013
A new article by Jared S. Buszin, Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy, 62 Emory L.J. 1613 (2013), applies state constitutional education rights to local district practices. His first premise is that school finance litigation and its focus on money has not made a significant difference in equalizing educational opportunities and certainly has not closed the achievement gap. His second premise is that school finance principles should apply to local district policies just as they do state wide policies. I would quible some with the breadth and implications of his first claim, but agree entirely with his second claim. In fact, I devoted significant time to the same premise in Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012), because my entire legal argument that state constitutions placed limits on local student assignment policies hinged on it.
Buszin, however, puts the premise to a different task. He argues that access to quality teachers is the most important "skills based education input" available to schools and that the "last in first out" rule of teacher layoffs works to protect seniority and ignores teaching quality. He points to examples like a teacher of the year being layed off and analyzes a trial court decision in California that enjoined a district's teacher layoff policy as interfering with students' fundamental right to education. He then posits how the theory might apply in other states.
In the end, I believe Buszin is a little too dismissive of the importance of money and the impact of school finance litigation, and I am a little leary of pitting student rights against teacher rights given the attack by conservatives and some moderates on teachers over the past two or three years (even though I am sympathetic to his point about student rights coming first). Those concerns, however, are overshadowed by a strong and creative argument for extending school finance precedent to new contexts, and his ability to apply it to a very precise context. For those interested in analogous arguments, it is worth the read.
Monday, August 19, 2013
Last fall, the University of Missouri-Kansas City hosted a symposium that included various litigants and attorneys who were actually part of the Supreme Court's landmark student speech cases. It also included leading student free speech scholars. The articles from the the symposium are now available on westlaw. Below are abstracts.
Allen Rostron, INTELLECTUAL SERIOUSNESS AND THE FIRST AMENDMENT’S PROTECTION OF FREE SPEECH FOR STUDENTS, 81 UMKC L.Rev. 635 (Spring 2013)
Abstract: “Part I of this essay provides a basic review of the Supreme Court's significant rulings about the free speech rights of students. Part II looks at how the lower courts continue to be divided over difficult questions about the constitutional analysis required by Tinker and the Supreme Court's other key precedents on student speech. In particular, it illustrates the uncertain and disputed character of this area of First Amendment law by examining the varying approaches that lower courts have used in a line of cases about student displays of the Confederate flag. Part III
proposes that courts can make a small step forward by explicitly making intellectual seriousness a legitimate factor for school officials to consider in deciding what student expression to permit or prohibit.”
Emily Gold Waldman, No Jokes About Dope: Morse v. Frederick’s Educational Rationale, 81 UMKC L.Rev. 685 (Spring 2013)
Abstract: “This piece begins with a “protective” reading of Morse, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens' dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools-as part of teaching students about the gravity of drug use- should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why Justice Stevens' argument-that Frederick's message was “stupid” and that he was just seeking attention-was wholly unconvincing to the majority, which was disturbed by those very aspects of Frederick's speech. It also helps to explain Justice Alito's concurrence, in which he distinguished between Frederick's speech and any speech that could “plausibly be interpreted as commenting on any political or social issue.” What harmed Frederick was that his speech minimized the seriousness of drug use while lacking the redeeming value of conveying a genuine message. In Justice Alito's eyes, a thoughtful argument for legalizing marijuana would deserve more protection than Frederick's banner, regardless of whether the former might actually have greater potential to persuade at least some students to experiment with it. I conclude with some reflections about why the Court left Morse's educational rationale in the subtext, rather than explicitly articulating it, and what this suggests for how the Supreme Court is approaching student speech cases.”
Andrew W. Kloster, Speech Codes Slipping Past the Schoolhouse Gate: Current Issues in Student’s Rights, 81 UMKC L.Rev. 617 (Spring 2013)
Abstract: “The areas outlined in this article are not the only active areas in the struggle for students' rights. Courts and school administrations are still grappling with the effects of disappointing Supreme Court decisions in Christian Legal Society v. Martinez and
Garcetti v. Ceballos. And, of course, even plainly unconstitutional speech policies exist at many
schools, requiring perpetual vigilance on the part of First Amendment advocates. But the areas outlined in this article are particularly unsettled. In Part II, this article will address the question of First Amendment limitations on off-campus, out-of-school speech. Part III examines the approaches to off-campus, out-of-school speech by the courts. In Part IV, this article will explore the ways in which uneven qualified immunity jurisprudence provides a patchwork of legal remedies across the nation. Part V will address some ways in which public schools, particularly at the college level, do an end-run around the First Amendment by outsourcing speech restriction to third parties. These three issues represent the cutting edge of today's students' rights advocacy. The
root of most of the problems is largely a lack of clear guidance by higher courts. American schools are the flowers of democracy; expression there must prosper if we are to have confidence in the legitimacy of our democratic institutions.”
Thursday, August 8, 2013
Public Education Under Siege is a new compilation of essays edited by Michael B. Katz, Walter H. Annenberg Professor of History at the University of Pennsylvania and Professor Mike Rose at UCLA's Graduate School of Education and Information Studies. The editors describe Public Education Under Siege as an examination of "why public schools are in such difficult straits, why the reigning ideology of school reform is ineffective, and what can be done about it." The book is broken into three sections, technocratic educational reform; the intersection of education, race, and poverty; and alternatives to modern school reform.
Ashleigh Barnes (Florida): The Docile Body – Disciplining the Category ‘Child’ Through the CRC’s Rights
Abstract excerpt: While the United Nations Convention on the Rights of the Child (CRC) has been extensively analyzed since its inception and the category ‘child’ has been critiqued for even longer, it seems the critiques made about the category ‘child’ continue to have limited purchase regarding the CRC’s construction of the category ‘child’. This article critiques the CRC’s articulation of the category ‘child’, the taken for granted/self-evident assumption that children are fundamentally different from adults, and that this ‘difference’ justifies their differential and submissive positioning in relation to adults under the banner of children’s rights. It seeks to examine the vision of the ‘child’ articulated in the CRC by employing a postmodern deconstructionist analysis, which draws heavily on Michel Foucault and Judith Butler. This article argues that through its vision of the ‘child’ as developing and ‘in care’, the CRC makes possible the regulation and control of childhood. ... The islands of ‘care’ and ‘education’ become the means through which the CRC’s normative childhood characterized by vulnerability and dependency, is enforced and produced. Vulnerability and dependency not only become markers of childhood, but also become firmly rooted norms about childhood. As such, children’s rights remain firmly rooted in notions of paternalism and protectionism opposed to participation.
Kristi L. Bowman (Michigan State): State Takeovers of School Districts and Related Litigation: Michigan as a Case Study
Abstract: In 2011, Michigan changed its emergency financial manager statute drastically, extending the authority of an manager over the local government she or he manages and giving the governor substantially more autonomy when selecting the individuals whose new title, "emergency managers," reflected that their authority was no longer limited to financial matters. These changes gained national attention. Michigan citizens’ resistance and challenges to the state’s new emergency manager statute were substantial, sometimes taking place in courtrooms and, in November, 2012, at the ballot box. At the time of publication, Michigan enacted yet another emergency manager statute, and although that statue curtails emergency mangers’ authority in some respects, it retains many of its predecessor’s shortcomings. The question of the proper role of a state in school districts’ fiscal crises is an important one. Like Michigan, numerous states have been grappling with that question — Indiana, Missouri, and Rhode Island, for example. Accordingly, learning about what has been happening in Michigan provides an exceptional opportunity for legislators, attorneys, academics, and advocates from across the country to reflect on how their own states should assist school districts in fiscal crisis, and when state intervention goes too far.
Edward J. Larson (Pepperdine): Teaching Creation, Evolution, and the New Atheism in 21st Century America: Window on an Evolving Establishment Clause, 82 Miss. L.J. 997 (2013).
Excerpt from the introduction: The legal controversy over teaching creation and evolution in American public schools has generated a steady stream of ever-shifting fact patterns affecting the interpretation and application of the U.S. Constitution’s Establishment Clause. Decades before the Supreme Court faced such hot-button issues as religious instruction in public schools, release time for religious instruction, posting the Ten Commandments in classrooms, official school prayer, and moments of silence, courts grappled with the role of religion in public education in the context of restrictions on teaching evolution in public school. This Article explores [an] emerging third phase of the creation-evolution controversy, examining (1) how disclaimer lawsuits have impacted the interpretation of secular purpose; (2) the constitutionality of so-called academic freedom statutes; and (3) emerging limits on anti-creationist official acts.
Mariela Olivares (Howard): Renewing the Dream: Dream Act Redux and Immigration Reform (Harv. Latino L. Rev.)
Excerpt from the abstract: This Article explores two areas of current immigration reform — the DREAM Act and the employment-based visa system — and notes parallels between the two communities of targeted beneficiaries. Through this discussion linking the DREAM Act beneficiaries (or “DREAMers”) to areas of high-skilled employment and entrepreneurism immigration visa reform, this Article argues that supporters of the DREAM Act should adopt a new strategy in lobbying and passing the DREAM Act. Because relying on the innocence and good character of the DREAMers has not proven a successful strategy to get the DREAM Act passed into law despite eleven years of effort, this Article asserts that DREAM Act advocates should look to the ongoing employment-based visa reform movement and re-brand DREAM Act beneficiaries as highly-skilled and talented potential Americans who are already contributing to American society. Although scholars and commentators have done significant work in making compelling arguments for the DREAM Act’s passage, this Article provides a completely unique strategy to pass the DREAM Act.
Friday, August 2, 2013
On Wednesday, the Georgetown University Center on Education and the Workforce released a study titled "Separate and Unequal: How Higher Education Reinforces the Intergenerational Reproduction of White Racial Privilege." The study begins with the bold finding that: "The postsecondary system mimics the racial inequality it inherits from the K-12 education system, then magnifies and projects that inequality into the labor market and society at large. In theory, the education system is colorblind; but, in fact, it is racially polarized and exacerbates the intergenerational reproduction of white racial privilege." It goes on to emphasize that there is good news, which is that access to higher education over the past 15 years has increased, particulary for minority students. The problem is that, "despite increasing access, there are two separate postsecondary pathways: one for whites and another for Hispanics and African Americans. Whites have captured most of the enrollment growth at the 468 most selective and well-funded four-year colleges, while African Americans and Hispanics have captured most of the enrollment growth at the increasingly overcrowded and under-resourced open-access two- and four-year colleges." Moreover, these different enrollment patterns are not fully explained by different college readiness. Rather, even highly qualified minorities disproportionately enroll in less selective or open access colleges, whereas whites, across the spectrum, disproportionately attend selective colleges. This differential enrollment is also troubling because graduation rates are much lower at less selective and open access colleges. In fact, highly qualified students graduate at a lower rate from these collleges than do less qualified students who attend highly selective colleges. In other words, this so-called "mismatch," whereby minorities attend colleges and universities that do not match their academic potential, decreases their chance of educational success and life opportunities.
Thursday, August 1, 2013
by Michael A. Olivas (University of Houston). From the publisher:
Although much has been written about U.S. Supreme Court decisions involving higher education, little has been said about the foundational case law and litigation patterns emerging from the lower courts. As universities become increasingly legislated, regulated, and litigious, campuses have become testing grounds for a host of constitutional challenges. From faculty and student free speech to race- or religion-based admissions policies, Suing Alma Mater describes the key issues at play in higher education law. Michael A. Olivas considers higher education litigation in the latter half of the twentieth century and the rise of "purposive organizations," like the American Civil Liberties Union, that exist to advance litigation. He reviews more than 120 college cases brought before the Supreme Court in the past fifty years and then discusses six key cases in depth. Suing Alma Mater provides a clear-eyed perspective on the legal issues facing higher education today.
Thursday, July 25, 2013
Stephen J. Elkind (NYU) and Peter Kauffman (NYU) have posted Gay Talk: Protecting Free Speech for Public School Teachers on SSRN. From the abstract:
In the Shadow of Gratz and Grutter: Grieving Diversity at the University of Michigan on SSRN. From the abstract:
In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education context. Due to the harms restricting teachers’ speech about homosexuality can cause students, not to mention community members and the teachers themselves, this paper argues that when the Supreme Court revisits the question it left open in Garcetti, it should create an exception for both university professors and public school teachers.
At the same time the affirmative action cases of Gratz and Grutter were winding their way to the Supreme Court, an internal grievance alleging discrimination and the failure to consider the value of diversity in the tenure process was being considered inside the University of Michigan Law School. This article explores the interconnected histories of Gratz, Grutter and the grievance, examining the internal difficulties and contradictions universities face in living up to their public commitments to fight discrimination and cultivate meaningful forms of diversity. The year following the Supreme Court decision, the University celebrated its accomplishments in 'Defending Diversity: Affirmative Action at the University of Michigan', co-authored by Patricia Gurin, the University’s lead expert witness on the effects of diversity in higher education and Jeffrey S. Lehman, Dean of the Law School through most of the litigation. In the internal grievance, Jeff Lehman advocated an interpretation of the Law School Grievance Policy that prohibited the grievance of any matter relating to tenure, including the crassest forms of discrimination or the failure of the faculty to consider the virtues of diversity. The Grievance Review Board, chaired by Patricia Gurin, adopted Dean Lehman’s position and categorically barred all grievances. Ironically, the hearing took place the very same day the University filed its response to plaintiff’s petition for writ of certiorari, where the University actively maintained that diversity in higher education constituted a compelling state interest. Meaningful progress on civil rights requires deep institutional change. It is often difficult to get even good people to do the right thing. The interconnected stories of Gratz, Grutter and the grievance – the same institution, with the same actors, at the same time the cases were being litigated – illustrate broader lessons about the challenges often preventing universities from making progressive change.
Ari Ezra Waldman (New York) has posted All Those Like You: Identity Aggression and Student Speech (Missouri Law Review, forthcoming) on SSRN:
Online and face-to-face harassment in schools requires a coordinated response from the school, parents, students, and government. In this Article, I address a particular subset of online and face-to-face harassment, or identity-based harassment. Identity-based aggressors highlight a quality intrinsic to someone’s personhood and demean it, deprive it of value, and use it as a weapon. This Article argues that identity-based aggression need not be conflated with identity-affirming speech, both as a matter of its social effects and the First Amendment. Only a limiting liberal/libertarian approach to free speech would prevent schools from disciplining identity cyberbullies and face-to-face harassers and simultaneously force schools to silence speech that is necessary to make minorities full and equal players in education and in society as a whole. Implications of this theory are discussed.
Thursday, July 18, 2013
David Aronofsky (Montana) and Sam Schmitt (Montana 3L), The Chicago Tribune v. The University Of Illinois: The Latest Iteration of New Textualist Interpretation of FERPA by the Federal Courts, 39 J.C. & U.L. 567 (2013). Excerpted from the abstract:
The Chicago Tribune Co. v. The Board of Trustees of the University of Illinois is the most recent iteration of a trend in which the Family Educational Rights Protection Act (“FERPA”) is interpreted by the federal courts according to New Textualism. The object of this approach is to interpret the meaning of a law's text with text-linked or text-based sources rather than legislative history or Congressional intent. The last twenty years of federal court FERPA case law evidences a shift toward a textualist approach to FERPA interpretation whereby softer approaches to statutory interpretation: legislative history, Congressional intent, and policy objectives are secondary for resolving legal disputes in the federal judiciary. Consequently, FERPA interpretation by federal circuit courts has also become highly uniform. This article argues that the Chicago Tribune fits neatly into the federal court trend towards principally text-based interpretation of FERPA. Consequently, state courts faced with conflicts requiring the resolution of FERPA disputes to apply state law correctly can rely on a straightforward method for properly interpreting the federal law.-ld
Thursday, July 11, 2013
The Convention on the Rights of Persons with Disabilities: will ratification lead to a holistic approach to postsecondary education for persons with disabilities?
Jason Palmer (Stetson), 43 Seton Hall L. Rev. 551-594 (2013). An edited excerpt from Professor Palmer's abstract:
The Convention on the Rights of Persons with Disabilities (CRPD), the first human rights convention of the 21st century, is one of the most far-reaching international documents in history for the protection of marginalized individuals with disabilities. The CRPD represents a paradigm shift in the area of disabilities by moving from a medical or social approach to persons with disability, to a human rights model. The holistic approach of the CRPD, as implemented through the principles of universal design, is the most efficient and cost-effective method for benefiting all persons with or without disability in higher education. This article is the first to conceptualize and envision a human rights approach to United States higher education and disability law through the holistic application of universal design in learning and instruction.
Joshua E. Weishart (W. Virginia), Stanford Law Review, forthcoming. An edited excerpt from Professor Weishart's abstract:
In the pursuit of educational justice, practice often outpaces theory. Theories of educational equality and adequacy have been understood to impose different demands. As generally conceived by equality theorists, justice dictates that all children have equal educational opportunities. Adequacy theorists typically construe the demands of justice as requiring that all children have access to a certain threshold of educational opportunities. Hence, the decades-long equality versus adequacy debate lingers over seemingly irreconcilable conceptual differences and legal impracticalities. My aim in this article is to enumerate the points of convergence between equality and adequacy and to show that their residual conflicting tenets are unsustainable in practice. Hence, equality and adequacy are not mutually exclusive; indeed, I contend that they are mutually reinforcing.
Thursday, July 4, 2013
Symposium: One Generation under Hazelwood: A 25-Year Retrospective on Student First Amendment Rights
Address by Erwin Chemerinsky; articles by Frank D. LoMonte, Francisco M. Negrón, Jr., Emily Gold Waldman and R. George Wright. 11 First Amend. L. Rev. 291-440 (2013). UNC Chapel Hill’s First Amendment Law Review held a symposium commemorating the 25th anniversary of Hazelwood School District v. Kuhlmeier (1987). The symposium speakers were asked, among other things, if the decision in favor of school censorship affected young people’s civic readiness.
We have the power to make change: the role of community lawyering in challenging anti-Asian harassment at South Philadelphia High School
Cecilia Chen (Thurgood Marshall Civil Rights Fellow, Lawyers' Committee for Civil Rights) and Andrew Leong (U. Mass. Boston), encourage legal educators to expose their students to community lawyering and values in We have the power to make change: the role of community lawyering in challenging anti-Asian harassment at South Philadelphia High School, 19 Asian Am. L.J. 61-115 (2012). Excerpted from the introduction:
This Article will explore the inner workings and philosophical differences of a community lawyering approach using the South Philadelphia High School ("SPHS") Anti-Harassment Campaign - where several students of different races were assaulted, racial epithets were used, physical and emotional scars were created, and the consequences were met with complete denial from school administrators. Asian immigrant students of Vietnamese and Chinese descent were the victims, not only of peer-on-peer harassment, but of a school system that deliberately turned a blind eye to the harassment taking place. What followed was a momentous grassroots campaign that drew national attention and galvanized a community. While there are many facets of this case that deserve exploration, this Article will limit its focus to the role and importance of "community lawyering" in empowering Asian immigrant youth and the broader community.
The Inevitable Irrelevance of Affirmative Action Jurisprudence
Leslie Yalof Garfield (Pace) discusses the potential impact of Fisher v. Univ. of Texas at Austin in her article (written before Fisher's release), 39 J.C. & U.L. 1 (2013). An excerpt from Professor Garfield's article:
Sadly, the current trend in post-secondary education to race to the top of the rankings combined with the increase in applications at most academic institutions is diametrically opposed to constructing a flexible, individualized, and therefore, constitutionally permissible race-preference program. Ensuring elite status by admitting students with the highest standardized test scores yields a racially homogenous entering class. The need for efficiency mandates that colleges and universities define a standardized test cutoff point for admission to their school, thereby decreasing the number of students whom the school must consider. Despite some reports to the contrary, school admissions boards remain unwilling or uninterested in removing themselves from the ratings game. For this reason, regardless of how the Court decides, Fisher will ultimately be inconsequential to school admissions decision-making and, therefore, will do little more than highlight the growing irrelevance of affirmative action jurisprudence.
The Wire and Alternative Stories of Law and Inequality
In The Wire and Alternative Stories of Law and Inequality, Robert C. Power (Widener-Harrisburg) examines the Supreme Court's educational funding decision in San Antonio Independent School District v. Rodriguez (1972) and how inequality was presented in the HBO series The Wire. Professor Power argues that the Supreme Court's decision in Rodriguez failed to acknowledge some of the implications of the facts in the case and "[left] out some truths that are sometimes best explored through fiction."46 Ind. L. Rev. 425, 428 (2013). From Professor Power’s abstract:
This Article examines The Wire for what it says about inequality in the United States today and what society can do to bring about greater equality. [It] identifies several themes explored over the five seasons of the series-the failure of law enforcement in the inner city, the harsh life and inadequate education of impoverished children in such areas, and Baltimore as an example of inefficient and corrupt city government [and] reviews the Rodriguez case to consider the extent to which it defined the nature and scope of the Fourteenth Amendment's Equal Protection Clause in terms of funding and providing public services. ...The Wire's ... stories stand as examples of inequality that are particularly corrosive to society [and the article identifies] possible responses to the unequal society portrayed in the series. ... The conclusion argues that The Wire reveals the need for legal reform, and the seven alternative approaches to action leave open the possibility of legal reform notwithstanding Rodriguez. Like The Wire, however, the Article recognizes that happy endings are rare and ephemeral. Even if the Court had ruled differently in Rodriguez, it is likely that the Baltimore of today would still be poor, dangerous, under-educated, and badly governed. Law can only do so much to equalize things. But it is necessary to try.
Monday, July 1, 2013
In addition to the article Professor Davis posted last week on the blog (For-Profits and the Market Paradox), Omari Simmons, Wake Forest University School of Law, justed posted his new article on higher education access barriers for low-income students to ssrn. The article is fortchoming in the Arizona State Law Journal. In his abstract, he writes:
Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K-12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the Morrill Act. The heightened focus on higher education attainment for low-SES students is also quite timely given the nation’s slow economic growth and the Supreme Court’s imminent decision in Fisher v. Texas. The prospect of the Supreme Court overturning its decision in Grutter v. Bollinger has prompted observers to consider the use of class as an alternative to the use of race in college admissions and beyond. In this legal, economic, and political environment, reforms targeting higher education attainment for low-SES students take on added significance. In response to these challenges, this Article proposes a more comprehensive K-16 framework to guide future reforms targeting higher education attainment for low-SES students. These reforms include: a rigorous K-12 education for a greater number of students; a transitional bridge between secondary school and higher education; and college-level reforms from federal, state, and institutional actors; and a presidential commission exclusively targeting higher education equity.
Dowload the full article here.--db
Thursday, June 27, 2013
Francis X. Shen (Minnesota) challenges the view that citywide referenda alone are an effective means of ensuring accountability for mayoral control of urban school districts. From Professor Shen’s abstract on SSRN:
Secretary of Education Arne Duncan has encouraged more mayors to take charge of their urban schools districts. Central to debates over mayoral control is the use of a citywide referendum to legitimize mayoral control. Voters in Boston and Cleveland supported mayoral control, while in Detroit voters chose to return to an elected school board. Through new empirical analysis of the referenda results in Boston and Cleveland, the article shows that rather than establish genuine democratic legitimacy, the referenda in fact mask strong class-based, and in Boston, race-based opposition to the reform strategy. Legislatures considering mayoral control would do well to think carefully before adopting a referendum as the only or primary solution to the mayoral control accountability dilemma. A referendum in and of itself is not a satisfactory safeguard to ensure the participation of urban minorities and poor residents in urban education reform discussions.
Omari Scott Simmons (Wake Forest) discusses proprietary schools’ growing impact on higher education and how those schools, fueled by federal financial aid, disproportionately impact vulnerable student populations. From Professor Simmons’s SSRN abstract:
The emergence of For-Profit Colleges and Universities (FPCUs) presents an interesting paradox: FPCUs, rather than traditional non-profit and public institutions, are becoming a de facto path for many vulnerable students: low socioeconomic-status students, underrepresented minorities, first generation college students, non-traditional adult students, and veterans. Federal government funding has accelerated the migration of vulnerable students to FPCUs. This migration reveals a shortcoming associated with portable financial aid in the existing regulatory environment: ill-informed vulnerable students selecting educational options that differentially empower them. Although FPCUs provide access to vulnerable student populations, the existing regulatory framework, when combined with market forces, does not at present, adequately protect federal dollars, students, or address broader societal issues, such as higher education stratification.
Thursday, June 20, 2013
Matthew D. Bernstein (Univ. of New Mexico), has posted 'The Last Acceptable Prejudice': Student Harassment of Gay Public School Teachers. Here is an excerpt of the abstract on SSRN:
In the United States, where the “marketplace of ideas” is a key social philosophy, few Americans receive the benefits of attending public schools with “out” gay and lesbian teachers. Even in an era where civil rights for homosexual public employees are increasing, more than one quarter of adults in the United States continue to believe that school boards should be permitted to fire teachers known to be homosexual. Amidst a permissive legal climate that too easily puts aside the rights of teachers in a myopic focus on students, incidents where students harass teachers based on the teachers’ sexual orientation go virtually unpunished. While states are increasingly protecting homosexual public employees through non-discrimination statutes, only federal guidance in the form of Title VII protection or a national non-discrimination statute are sufficient to properly shield teachers and institute a truly democratic classroom.
The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs
In The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, the authors examine recent cases in which graduate students in school counseling programs argued that they could interpret counseling profession's Code of Ethics differently than their program faculty because of the student's religious beliefs, even though the Code was a part of the graduate program to which they voluntarily applied and enrolled. The article discusses the intersection of personal beliefs on gays and lesbians as counseling clients and professional ethics in higher education graduate programs. Todd A. DeMitchell, David J. Hebert, Loan T. Phan, The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, 39 J.C. & U.L. 303 (2013).
Teaching Creation, Evolution, and the New Atheism in 21st Century America: Window on an Evolving Establishment Clause
Edward J. Larson (Pepperdine) discusses the "third generation" religion-in-schools controversies: the rise of the intelligent design movement. Professor Larson writes, "This new phase of the controversy is testing basic principles of Establishment Clause jurisprudence, particularly the purpose prong of the Supreme Court's Lemon test. He explores this emerging third phase of the creation-evolution controversy by examining how lawsuits have impacted the interpretation of secular purpose; the constitutionality of so-called academic freedom statutes; and emerging limits on anti-creationist official acts. Prof. Larson's article can be found
Hillel Y. Levin (Univ. of Georgia), has posted Tax Credit Scholarship Programs: A Model Statute for a Better Program (Education Law and Policy Review, forthcoming). In the article, he examines state tax credit scholarship programs that allow taxpayers to receive tax credits for contributing to student scholarship organizations. He offers a model statute for an improved tax credit scholarship program.
UCLA Law Dean Rachel Moran remembers former University of California President Clark Kerr and his vision for public higher education in a speech titled Clark Kerr and Me: The Future of the Public Law School, 88 Ind. L.J. 1021 (2013). Dean Moran applies Kerr's views to her own convictions about the unique mission of public law schools and ways to secure their future.
Applying the “Paradox” Theory: A Law And Policy Analysis of Collective Bargaining Rights and Teacher Evaluation Reform from Selected States
Mark Paige (Assistant Professor, Department of Educational Leadership, U. Mass-Dartmouth), Applying the “Paradox” Theory: A Law And Policy Analysis of Collective Bargaining Rights and Teacher Evaluation Reform from Selected States, 2013 B.Y.U. Educ. & L.J. 21 (2013). Professor Paige analyzes reforms to legislative changes about teacher evaluations and argues that excluding unions from teacher evaluations in collective bargaining negotiations will have the unintended consequence of impeding reforms and change.
Parental Choice, Catholic Schools, and Educational Pluralism at the Dawn of a New Era in K-12 Education Reform
In the Notre Dame Journal of Law, Ethics & Public Policy, John Schoenig (Director, Program for K-12 Educational Access and Faculty, Alliance for Catholic Education) examines the "curious" shrinkage of Catholic school enrollment (there are approximately 460,000 “empty seats” in Catholic schools nationwide), where more than one third of those empty seats are in states that have parental choice programs. John Schoenig, Parental Choice, Catholic Schools, and Educational Pluralism at the Dawn of a New Era in K-12 Education Reform, 27 Notre Dame J.L. Ethics & Pub. Pol'y 513 (2013).
Friday, June 14, 2013
For those who missed it, I wanted to highlight a new article by Kristi L. Bowman, State Takeovers of School Districts and Related Litigation: Michigan as a Case Study, 45 Urb. Law 1 (Winter 2013). This article looks at government takeovers of school districts, using Michigan as a case study. In it, the author looks at:
[t]he question of the proper role of a state in school districts' fiscal crises is an
important one. Like Michigan, numerous states have been grappling with that same question--Indiana, Missouri, and Rhode Island, for example. Accordingly, learning about what has been happening in Michigan provides an exceptional opportunity for legislators, attorneys, academics, and advocates from across the country to reflect on how their own states should assist school districts in fiscal crisis, and when state intervention goes too far. Part I of this paper briefly discusses the various legal mechanisms for state intervention in school districts' and other municipalities' fiscal crises; it also analyzes Michigan's 1988, 1990, and 2011 takeover statutes and the litigation and other public opposition to those statutes. Part II focuses on four substantial shortcomings contained in Michigan's 2011 takeover statute, which was ultimately rescinded by Michigan voters.
Thursday, June 13, 2013
Charter Schools, Vouchers, and the Public Good
I recently had a conversation with an acquaintance about a new school voucher law in our state. He was bullish about the benefits of school choice and had the optimistic perspective that a rising tide lifts all boats. I wish that I had had Derek Black’s new essay, Charter Schools, Vouchers, and the Public Good (Wake Forest Law Review, forthcoming), to refer to during that conversation. (Professor Black is a co-editor of this blog.) Professor Black examines the societal impact of charter schools and the consequences of assigning a vital public function to lightly-regulated independent groups. He reminds us public schools were created to realize the common good of an educated citizenry, and public funding allows us to pool our resources to realize that good. Without careful implementation of charter school programs, those resources will be peeled away to go to schools that may have little commitment to achieving diverse student populations. By cherry-picking students who can boost assessments of a charter school’s efficacy, such schools could exacerbate de facto segregation, isolationism, and inequality. See Professor Black’s essay Charter Schools, Vouchers, and the Public Good here.
Judicial Clarity: Giving Teeth to the Application of Federal Disability Laws in Charter Schools
Another author takes on the issue of charter schools, discussing how a charter school program can “reconcile its mission and limited resources with its obligations under federal disability laws.” Sarah Wieselthier (law clerk to Law Clerk to the Hon. Rachel N. Davidson & the Hon. Edith K. Payne, Superior Court of New Jersey), Judicial Clarity: Giving Teeth to the Application of Federal Disability Laws in Charter Schools, 2013 B.Y.U. Educ. & L.J. 67 (2013). Courts are essential, Wieselthier argues, “to ensure that the rights of students with disabilities are protected when they seek to take advantage of the innovative educational opportunities charter schools afford to their non-disabled peers.”
The Unfinished Journey--Education, Equality, and Martin Luther King, Jr. Revisited
Taunya Lovell Banks (University of Maryland) discusses the critical need for “equally resourced, racially and economically diverse public schools classrooms throughout America,” in The Unfinished Journey--Education, Equality, and Martin Luther King, Jr. Revisited, 58 Vill. L. Rev. 471 (2013). The article reproduces Professor Banks’s Martin Luther King, Jr. lecture in January at Villanova University School of Law. Professor Banks notes the retrenchment of segregation in American education and says that part of that failure is that predominately non-white schools have been abandoned by the upper and the middle class. With these factors still present, the nation cannot realize the potential of Brown v. Bd. of Education.
On “Unease” And “Idealism”: Reflections On Pope Benedict XVI's Educating Young People In Justice And Peace And Its Message For Law Teachers
In her new article Lucia A. Silecchia, (Catholic University, Columbus School of Law) discusses what law teachers can learn from Pope Benedict XVI's 2012 message, Educating Young People in Justice and Peace. On “Unease” And “Idealism”: Reflections On Pope Benedict XVI's Educating Young People In Justice And Peace And Its Message For Law Teachers, 27 Notre Dame J.L. Ethics & Pub. Pol'y 569 (2013).The obligation of teaching, Pope Benedict said, extends "beyond mere imparting of knowledge and toward living a life that offers effective witness to all that which they hope their students will become.” Professor Silecchia applies that message to modern legal education: that law schools should seek more than developing technical ability and instead inculcate values of service and becoming effective witnesses for peace and justice.
School's Out Forever: The Applicability of International Human Rights Law to Major League Baseball Academies in the Dominican Republic
To recruit young prospects to play in the major leagues, Major League Baseball runs educational academies in the Dominican Republic. Those academies are structured to help players assimilate to life in the United States. But, just as in any sport, most aspiring players do not make it to the pros. The many young players left behind can end up returning to a life of poverty in the Dominican Republic without a practical education. Ryan S. Hanlon tackles this issue and the potential application of international human rights law to solve it in his student comment, School's Out Forever: The Applicability of International Human Rights Law to Major League Baseball Academies in the Dominican Republic, 26 Pac. McGeorge Global Bus. & Dev. L.J. 235 (2013)).
Thursday, June 6, 2013
In keeping with Professor Laycock's look back at plaintiffs in landmark education law cases, we also note the recent passing of Alton T. Lemon, civil rights activist and lead plaintiff in Lemon v. Kurtzman, on May 26. Read the New York Times' obituary here.
Regretting Roth? Why and How the Supreme Court Could Deprive Tenured Public Teachers of Due Process Rights in Employment, 44 Loy. U. Chi. L.J. 591 (2013), discusses the Supreme Court's discomfiture with the Roth/Perry test (that determines if a public employee has a right to employment protected under due process) and theorizes that the Court may substitute an alternative framework for determining the presence of a protected interest-- the “atypical and significant hardship framework." If the Court chooses the latter test, author Karl D. Camillucci (Holland & Knight LLP, Chicago) argues, tenured teachers’ claims under due process will be substantially restricted.
More than a straightforward book review, Gregory Duhl (William Mitchell) details his personal experience with Borderline Personality Disorder in his article, Over The Borderline--A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability and Academic Life, 44 Loy. U. Chi. L.J. 771 (2013). Here's an excerpt from the abstract: "This Article is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability and Academic Life, Professor Margaret Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this Article, I place Price’s work in a legal context, discussing why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique."
Teachers’ online conduct has been a popular topic for legal scholarship this year, and two articles this week discuss the perils for teachers with technology. In Streaming While Teaching: The Legality of Using Personal Streaming Video Accounts for the Classroom, 23 Alb. L.J. Sci. & Tech. 221(2013), Jonathan I. Ezor (Touro) examines the applicability of the fair use defense and the Copyright Act § 110(1) when teachers use personal accounts on services such as Amazon, Hulu, and Netflix to stream copyrighted content in the classroom.
In Facebook Off Limits? Protecting Teachers' Private Speech on Social Networking Sites, 47 Val. U. L. Rev. 119 (Fall 2012), Valparaiso student Lumturije Akiti argues that the Supreme Court’s Pickering-Connick balancing test leaves teachers largely unprotected from being disciplined for their private social networking. Akiti reasons that Pickering places too much weight on teachers’ duties rather over their being members of the general public, because much of teachers’ speech on social networking sites do not implicate the government's interest as an employer. Teachers' lawsuits challenging terminations based on social media communication are also unlikely survive summary judgment because such private speech will rarely meet Connick's threshold "matters of public concern” requirement. Akiti notes that courts' interpretation of Pickering-Connick has led to inconsistent results, as some courts have rejected FIrst Amendment political speech claims simply because the forum in which the speech was posted mostly discussed private matters.
Tuesday, June 4, 2013
In doing research for my casebook, I came across a few articles that identified the conflicting and outdated rules that could prevent transgendered athletes from participating in atheletics at all. The NCAA, to its credit, had taken some steps to address the issue. Unfortunately, however, this has been a reletively underdeveloped of the law. I am glad to see that others are continuing to write about it. I just picked up this article yesterday:
Elizabeth M. Ziegler & Tamara Isadora Huntley, “’It Got Too Tough to Not be Me’:
Accommodating Transgender Athletes in Sports”, 39 J.C. & U.L. 467 (2013). Cribbing from its abstract: “This Article will argue that there is a need for standards to ensure that the transgender student-athlete does not encounter problems with participation due to inconsistent rules for state eligibility, conference and tournament eligibility, and national competitive tournaments. Furthermore, inclusion, equal opportunity, and acceptance should be the goals when establishing such standards …. Finally, such standards should be the goal because of the numerous positive effects of athletic participation, including, physical, social and emotional wellbeing, self-discipline, teamwork, and learning how to deal with success and failure.”
Sunday, June 2, 2013
Below is the abstract of Education Law: Equality, Fairness, and Reform, which emphasizes the current landscape of equality and civil rights issues in education:
Education Law situates case law in the broader education world by including edited versions of federal policy guidance, seminal law review articles, social science studies, and policy reports. It includes individual chapters on each major area of inequality: race, poverty, gender, disability, homelessness, and language status. Those chapters are followed by a structured approach to the complex first amendment questions, dividing the first amendment into three different chapters and addressing, in order, freedom of expression and thought, religion in schools, and the intersection of religion and freedom of expression with school curriculum. Two chapters relating to current educational reform — No Child Left Behind, Standardized Testing, Charter Schools, and Vouchers — close out the book.
Narrative introductions to every chapter, major section, and case synthesize and foreshadow the material to improve student comprehension and retention. Efficient presentation of carefully-edited cases and secondary sources permit comprehensive inclusion of case law and secondary issues. Student-friendly questions and notes follow each case. Hypothetical problems follow each subsection and draw on multiple skills: synthesis of law, factual application, fact gathering, professional judgment, and practical problem-solving skills. These problems can be modified for group exercises, class discussion, or writing assignments.
Student learning in law school is the theme of this week's selected scholarship roundup, starting with Cassandra L. Hill's (TSU-Thurgood Marshall Law) The Elephant in the Law School Assessment Room: The Role of Student Responsibility and Motivating Our Students to Learn (Howard Law Journal, 2013). In The Elephant in the Law School Assessment Room, Professor Hill makes a straightforward proposal: "law professors and law schools must do more to effectively assess students’ responsibility for, and contributions to, their own learning, development, and eventual mastery of substantive law, lawyering skills, and ethical considerations." Professor Hill's article is available at SSRN here.
In One Small Step for Legal Writing, One Giant Leap for Legal Education: Making the Case for More Writing Opportunities in the 'Practice-Ready' Law School Curriculum (2013), Sherri Lee Keene gives law schools a path to "bridge the gap that currently exists between legal theory and practice in legal education." Professor Keene (Univ. of Maryland Law) offers concrete suggestions how law schools can help its students apply the law by incorporating more legal writing opportunities throughout the curriculum. Professor Keene's article will be published by Mercer Law Review and is available at SSRN here.
R. Lisle Baker (Suffolk Law) and Daniel P. Brown (Associate Clinical Professor of Psychology, Harvard Medical School) apply an interdisciplinary approach to the issue of law student engagement in On Engagement: Learning to Pay Attention. While "student success in law school requires intense and sustained attention," the authors note that students experience attention lapses as early as the first thirty seconds of a lecture with ever-increasing lapses throughout the session. The authors suggest ways to quiet the legal mind, including "pure concentration training as the foundation for attention skill development." Professors Baker and Brown's working draft is available at SSRN here.