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.
Friday, May 31, 2013
The Fordham Urban Law Journal is soliciting articles for its upcoming special issue: New IDEAs: How to Adequately Educate Urban Schoolchildren with Disabilities. This issue of the Journal will address many of the shortfalls of the IDEA, as well as possible legal remedies or reforms that will help to support the IDEA’s goals. The journal is particularly interested in including articles that address, critique, or voice concerns over how the IDEA is currently applied in urban schools and articles that propose reforms or remedies so that urban school children will have an appropriate education, including: Funding (for example, disparities in federal, state, and local funding; reimbursement to parents for accommodations); Implementation of the Act (for example, hiring or assessing qualified special education teachers, overly bureaucratic procedures,
or other administrative difficulties); Educational Quality between Districts, Cities, and Socioeconomic Groups; Judicial Review (for example, the requirement that parents must appeal to an administrative body first before they are given a right to appeal to a civil court); Early Identification and Intervention
If you are interested in submitting an article for publication, please submit a one-page proposal as soon as possible. Articles will be selected on a rolling basis. The Fordham Urban Law Journal requires articles to be between 10,000 and 25,000 words, including text and footnotes.
Thursday, May 23, 2013
Legal scholarship on education law covers the waterfront this week. This week we note articles on affirmative action jurisprudence, income disparity in education, and that Brigham Young University's Education and Law Journal is out with several articles on education law and reform.
New Fisher scholarship
Leslie Yalof (Pace Law School) has published The Inevitable Irrelevance Of Affirmative Action Jurisprudence, 39 J.C. & U.L. 1 (2013), excerpted below:
Fisher v. University of Texas presents an Equal Protection challenge to the University of Texas' race-preference admissions policy. In this article, I am proceeding on the assumption that, in its decision, the Court will not abolish affirmative action programs wholesale, if it addresses the merits of Abigail Fisher's challenge. ... Based on the existing precedent, the Court can decide the Fisher case in any of three ways. First, the Court could avail itself of the opportunity presented by Fisher to expand the constitutional permissiveness of considering race as a factor in admissions decisions. Given that four of the eight justices deciding this case have made clear their strong opposition to the use of race in this context, this scenario is highly unlikely. At the other end of the spectrum, the Court could find that there is no longer a compelling governmental interest in the use of race in the admissions process, thereby causing the sun to set on affirmative action admissions policies much sooner than Justice O'Connor predicted in her majority opinion in Grutter. This is an equally unlikely scenario because four of the Justices have already confirmed their commitment to the compelling governmental interest in using race-preference policies to achieve viewpoint diversity. The most likely outcome is that the Court will rule very narrowly, striking down the UT program as not being narrowly tailored, while leaving intact the Court's previously articulated finding of a compelling governmental interest in diversity education. Thus, colleges and universities will remain free to construct some type of race-preference admissions policy in an effort to ensure diversity among their classes. Despite the Court's commitment to upholding the narrow use of race in the admissions process, however, most institutions will be unable or, more likely, unwilling to construct constitutionally permissible race-preference admissions programs. ... For this reason, regardless of how the Court decides, Fisher will ultimately be inconsequential to school admissions decision-making and, therefore, will do little more than highlight the growing irrelevance of affirmative action jurisprudence.
In Race and Income Disparity: An Ideology-Neutral Approach to Reconciling Capitalism and Economic Justice, 3 Colum. J. Race & L. 49 (2013), Robert Hardaway (University of Denver, Sturm College of Law) examines the continuing problem of ideological battles between political groups and coalitions that have frustrated the quest for solutions to widening income and wealth disparities:
The fault for society's failure to adequately address income disparity along racial lines does not lie exclusively with any one political group or party. Both liberals and conservatives have permitted ideology to cloud their search for meaningful solutions. If these solutions are to be found, conservatives must discard ideological preconceptions in such areas as abortion rights, family planning, and drug policy; liberals must likewise discard ideology in their approach to tax policy, immigration, housing, and education. Both conservatives and liberals must discard ideological preconceptions and abandon politically seductive, but ultimately demagogic and self-defeating policies relating to international trade, and residential exclusionary policies, particularly in the areas of zoning.
In Misshaping the River: Proposition 209 and Lessons for the Fisher Case, 39 Journal of College and University Law 53 (2013), William C. Kidder relates five lessons for Fisher learned from California's affirmative action ban, Proposition 209. Kidder is the Assistant Executive Vice Chancellor at UC Riverside, but notes that the article expresses his personal views rather than the views of the University of California. Below is an excerpt of Misshaping the River:
California's experiences with and responses to Proposition 209 bear on the Fisher v. University of Texas at Austin case with respect to both questions of compelling interest and narrow tailoring. ... This article advances the following findings and conclusions:
Lesson #1--At the University of California, which is subject to an affirmative action ban, recent survey data from eight campuses confirms that the campus racial climate is significantly more inhospitable for African Americans and Latinos than at UT Austin and two other peer universities.... Relatedly, on the question of “critical mass” versus racial isolation that was discussed at length during the U.S. Supreme Court's oral argument in the Fisher case--and that was one key consideration taken into account by UT Austin in devising its admissions program--the comparative data in this article suggest that the threat of educational harm associated with racial isolation is very real (particularly for African Americans) and should not be minimized or overlooked.
Lesson #2--Contrary to recent claims by groups opposing affirmative action, Proposition 209 (“Prop 209”) triggered a series of educationally harmful “chilling effects.”
Lesson #3--Affirmative action critics supporting Petitioner are propagating two related myths about credentials and performance. First, they scapegoat affirmative action as the overwhelming cause of racial/ethnic differences in SAT scores at UT Austin and elsewhere, when this relationship is quite modest for reasons stemming from the mathematics of admissions. Secondly, the critics stubbornly insist that affirmative action causes substantial “mismatch” effects on underrepresented minority student performance when in fact there is a voluminous social science literature indicating that affirmative action at highly selective institutions has a net positive effect on graduation rates and other important outcomes.
Lesson #4--While some argue in favor of class-based affirmative action in lieu of race-conscious programs, UC's atypically large enrollment of low-income undergraduates is strong “natural experiment” evidence verifying that class-based policies are not effective substitutes for race-conscious policies.
Lesson # 5--The experience of: UC Business Schools and UC Law Schools after Proposition 209 provide compelling case studies regarding the need for race-conscious affirmative action.
Other articles this week address the future of legal education. While we would normally leave articles on the legal education debate to our colleagues at The Legal Whiteboard, we highlight a few this week that touch upon equity in education.
Inequities and the future of legal education
Brian Tamanaha (Washington University Law) has posted The Failure of Crits and Leftist Law Professors to Defend Progressive Causes (Stanford Law & Policy Review, forthcoming) on SSRN.
In the article, Tamanaha confronts liberal legal academics for "perpetuating the profoundly warped and harmful economics of legal education" and encourages them to "take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation."
Responding to Tamanaha's Failing Law Schools book, Michael A. Olivas has written Ask Not for Whom the Law School Bell Tolls: Professor Tamanaha, Failing Law Schools, and (Mis)Diagnosing the Problem, 41 Wash. U. J.L. & Pol'y 101 (2013). Olivas "call[s] us to action as a community, for threats to the universe of legal education will affect us all to our collective detriment and to that of our students." Here is an excerpt of his abstract:
The real Cassandra, however, is Professor Brian Z. Tamanaha, whose apocalyptic book Failing Law Schools is a shrill call to arms, a substantial work of powerful charges and dire solutions, well-written and arriving at a crucial time in legal education, in the United States and worldwide. I believe he holds powerful diagnostic skills and has a storyteller's narrative, but I believe his solutions are substantially wide of the mark, and would violate the code that remedial actions should, at the least, do no harm. If he were simply overstating issues or being a provocateur for the sheer sake of being one, as other critics have done, I would simply let him stew in his own juices. But his devastating critique has a number of accurate observations, ones I share, so laying out his arguments and his critical architecture is necessary to see how the analytic second step--his remedies--can be so wrong. Indeed, rather than merely noting his architectural framework, I will note the arithmetic of his remedies, and attempt to show why he should receive only partial credit for his math homework.
In The Job Gap, the Money Gap, and the Responsibility of Legal Educators, 41 Wash. U. J.L. & Pol'y 1 (2013), Deborah Jones Merritt (Moritz College of Law, The Ohio State University) addresses economic reform in legal education:
Today's law school graduates face a grim prospect: more than half of them will not make a career practicing law. Some of those graduates will enjoy jobs in fields allied with law, but many will settle for work with little connection to the degree they earned. ... These trends generate two gaps. The first is between the number of students earning law degrees and the number of lawyering jobs available to them. The second is between the tuition that students pay and the early-career salaries they receive--if they are fortunate enough to find lawyering work. I explore these two shortfalls, the job gap and the money gap, in the first and second sections of this Essay. In the final section, I turn to an equally troubling lacuna: the failure of law schools to acknowledge the harms their graduates are suffering. This responsibility gap is one that we, as educators, have the power to bridge. As I explore the shortfall between our schools' actions and our responsibilities, I offer several concrete steps to close that gap.
In An Essay on Rebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375 (2013), Jack Graves (Touro Law) describes ways to reduce risks and improve legal education outcomes for the bottom half of students in the bottom half of all law schools. Focusing on this group is essential to rebuilding legal education, Graves writes, because "[t]his group represents 25% of current law graduates, and, as a group, they almost certainly bear a disproportionate share of the burden created by our broken educational model. While the suggestions that follow will in some ways specifically target this “bottom quartile,” I believe they would materially improve legal education for a substantial majority of all prospective students."
Wednesday, May 22, 2013
Nearly two years ago, the Department of Education created a commission of experts to:
provide advice to the secretary of the U.S. Department of Education on the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and to recommend ways in which federal policies could address such disparities. The findings and recommendations of the commission do not represent the views of the department, and this document does not represent information approved or disseminated by the Department of Education.
The Commission released its report this spring and described its proposed strategy for reform as follows:
• First, we begin with a restructuring of the finance systems that
underlie every decision about schools, focusing on equitable resources
and their cost-effective use.
• Second, we examine the most critical resource of all: quality teachers and school leaders, the supports they need to be effective with all learners and ways to make sure all students have access to high-quality instructional opportunities.
• Third, we explain the importance of starting early—making the case for high-quality early learning for all children, especially for low-income children, who need it most.
• Fourth, there is the matter of providing critical support—including increased parental engagement, access to health and social services, extended instructional time and assistance for at-risk groups—that students in high-poverty communities need to start strong and stay on track.
• And fifth, we lay out the changes in accountability and governance necessary to ensure that, a decade from now, there doesn’t need to be yet another commission appointed to call public attention to the corrosive effects on the nation’s children and our future of the failure to advance equity and excellence in America’s public schools.
These points recognize the problem of concentrated poverty, but the solutions focus exclusively on addressing the problem in place through money, programs, and the lack. Curiously missing is any mention of integration strategies. A few members of the Commission were interested in focusing more heavily on integration, but the fact that they lack significant support is a sad testiment to how far away from integration the conversation has moved.
The Leadership Conference Education Fund recently released a response report to the Commission. Integration was missing from its proposals as well. The absence in both reports of integration proposals is probably due to the Commission's core charge of addressing finance inequity, and a desire to not muddy the waters with other issues. While these practicalities are understandable, the assume that segregation and inequality can separated, which history and scholars tell us is false. As Jim Ryan most prominantly has argued, the achievement gap is caused by the intersection of school finance inequity and segregation, not finance inequity alone. Thus, solving finance inequity without touching segregation will not pay the dividends that policy makers expect.
Thursday, May 16, 2013
Aaron Saiger (Fordham Law) has posted Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education on SSRN (Cardozo Law Review, forthcoming). Saiger is not optimistic about states' abilities to control how much public money goes to religious charter schools, writing that "[p]ractical and constitutional constraints upon the regulatory tools that the neoliberal paradigm makes available to states — rulemaking and exercising bureaucratic discretion when approving and renewing charters — ensure that efforts to abolish religion in charters will enjoy only partial success."
Promoting Language Access in the Legal Academy, recently posted on SSRN, discusses innovations and best practices about language access in the legal academy. Building on research and the ABA’s 2012 Standards for Language Access in Courts, the authors outline ways to include language access in the law school curriculum and suggest bilingual instruction as a language access strategy. The authors also describe how law schools can expand the pipeline into the interpreter professions by training and deploying bilingual college students as community interpreters. The article by Gillian Dutton (Seattle University School of Law), Beth Lyon (Villanova University School of Law), Jayesh Rathod (American University - Washington College of Law), and Deborah M. Weissman (University of North Carolina School of Law), will be in the University of Maryland Law Journal of Race, Religion, Gender and Class, forthcoming.
Sara Solow and Barry Friedman (NYU Law) advocate changing the ways law professors teach and discuss constitutional interpretation in their article, How to Talk About the Constitution (Yale Journal of Law & the Humanities, 2013). This article would normally seem more appropriate for our colleagues at Constitutional Law Prof Blog, but is helpful for education law scholars because the authoris illustrate their constitutional interpretation model by making a case for a federal right to a minimally-adequate education.
Speaking of Constitutional Law Prof -- they have a detailed breakdown of why the Louisiana Supreme Court struck down the state's school voucher funding scheme this week. Read more at Constitutional Law Prof Blog.
Know of other recent education law scholarship that we should share? Please send us a link.