Friday, November 8, 2013
The articles from Denver University's symposium on Keyes v. School District No. 1 are now available on westlaw. The symposium includes articles by Mark Tushnet, Kevin R. Johnson, Michael A. Olivas, Rachel F. Moran, and Phoebe A. Haddon, as well as memoirs by individuals personally connected to the events in Denver. While all address interesting topics, Mark Tushnet's keynote address and article, A Clerk’s-Eye View of Keyes v, School Dsitrict No. 1, 90 Denv. U. L. Rev. 1139 (2013), offer a particularly interesting account of the inner workings of the Court surrounding the case. Tushnet was clerking for Justice Thurgood Marshall when Keyes was decided. Relying on his personal experience and other new available materials from the Court, he explores the complexity of the Court's deliberations.
The story of these internal debates is not entirely new. Justice Powell's concurrence, for instance, explicitly reveals the depth of his disagreement with the Court. And, Bob Woodward and Scott Armstrong's book from 1979, The Brethren, also explored some of these divisions. Tushnet, however, best captures the doctrinal battles occurring on the Court and the personalities behind them. As he notes, seven out of eight justices found there to be a constitutional violation in Keyes. The fractured decision represented not so much a debate over what to do with Denver, but a fight over what Keyes would mean for places like Detroit and Boston.
Although not explicit in the opinion, the fight over busing largely drives the Court's final decision. Powell wanted to reject de jure versus de facto distinctions, but in doing so, he wanted to limit the available desegregation remedies, particularly busing. The majority wanted to keep busing as a way to affirmatively further integration. The only way it could get the votes to do that was by drawing a distinction between de facto and de jure segregation. That distinction would shield many districts from busing, but keep it well alive in throughout the south.
From my perspective , it is not clear that the Court fully appreciated the long term ramifications of its decision. The Court may have been too caught up in the times, which is understandable, and unsure of the best path in regard to its first northern desegregation case. Regardless, Keyes is later cited as the foundation for requiring intent to prove a constitutional violation in all racial discrimination cases. As a result, Keyes drew the line that placed the bulk of racial inequality in all areas of life off-limits. And while the de jure-de facto distinction may have saved busing in some districts (the evidentiary presumption in the case also became a powerful tool in the south), it created the principle by which to later place significant limits on desegregation. In effect, Keyes was the beginning of the end for desegregation.
All of the article titles and authors follow the jump.
Friday, November 1, 2013
Alexandra Muolo’s article, Not So Black and White: The Third Circuit Upholds Race-Conscious Redistricting in Doe ex rel. Doe v. Lower Merion School District, 58 Vill. L. Rev. 797 (2013), is now available on westlaw. Doe v. Lower Merion flew under the radar of most until the last minute. The case involved a school district with just two high schools and a minority population of around ten percent. The new student assignment plan split that minority community between the two high schools. Interestingly, the challenge to the race conscious redistricting came not from the white community but from the minority community.
In an analytically complex and extremely important decision, the Third Circuit held that Justice Kennedy’s concurring opinion from Parents Involved in Community Schools v. Seattle was the controlling opinion and, thus, race conscious plans that do not rely on individual race classifications to assign students are not subject to strict scrutiny. Within a few days of the decision, the Departments of Justice and Education issued policy guidance reaching the same conclusions themselves. In short, Doe v. Lower Merion is the most important post-Parents Involved decision available.
Muolo’s article offers an in-depth examination of this case, pointing out those key aspects of the redistricting process that made it constitutional. Muolo concludes on a practical note:
When school districts are faced with Equal Protection challenges, the first step of the court will be to determine the appropriate level of scrutiny. While race-conscious integration policies only demand rational basis review, the policies still must be rationally related to a legitimate state interest. Though there are several approaches that school districts can take to avoid constitutional challenge, Doe provides a practical example. By explicitly listing race-neutral grounds for redistricting--the Non-Negotiables and community values--Lower Merion School District was able to implement a race-conscious policy that was rationally related to the legitimate purposes outlined by the Board of Directors. In the case of student redistricting policies, therefore, practitioners must advise school districts to document the legitimate, race-neutral interests for redistricting. As such, the developers of the redistricting plan may also consider racial impact, which will foster integration.
Thursday, October 31, 2013
On valuing education, he says this stereotype is an assumption based on less parental involvement at the school building itself by low-income families, but he points out that the inability to be at school is caused by job, transportation, and other barriers poor families face, not a lack of interest. He says there is no information to infer that they actually value education less. The laziness stereotype is easily debunked by the fact that many poor families work more hours and jobs than other families. They just make less money. On substance abuse, he says data shows that wealthier families actually have a higher rate of alcohol and drug abuse than poor families. They, of course, also have more money with which to indulge.
The linguistic deficient, however, was the most interesting. He does not contest that lower income parents may have less formal vocabularies, which also manifests itself in their children’s oral communication. He does contest that they are less complex or necessarily eqaute to ignorance. He points to evidence that indicates oral vocabularies are not as closely linked to reading and writing vocabularies as one might think. In short, a child’s oral linguistics are not a limit on their ability to learn to read. This makes sense because, after all, reading is new to all kids, regardless of how well they might speak. Gorski acknowledges that low-income students do tend to start school with fewer reading skills than other students, but he argues this is a function of difference in access to quality pre-k educational opportunities, not necessarily their parents’ communication skills. His debunking of the bad parent stereotype is largely intertwined with the previous four points.
So why are these stereotypes so prevalent and where do they come from? Part of it, he says, is our
Thursday, October 17, 2013
Nancy Chi Cantalupo (Georgetown)'s abstract:
James G. Dwyer (William & Mary)'s abstract:
Proponents of school vouchers often tout parental choice as a vehicle for positive innovation, general improvement of school systems, and better education for individual children. This Article explains why this reasoning is fallacious.
The Endangered School District: The Promise and Challenge of Redistributing Control of Public Education
Daniel Kiel (Memphis)'s abstract:
The standard conservative view of privatization in education favors state funding of private schools, religious and nonreligious, without state oversight to ensure accountability for how the money is used. The standard liberal view opposes state funding of private schools regardless of whether there is state oversight to ensure that the funding improves children's secular education. This Article highlights the main points against both standard views, and it advances the intermediate position that states may provide funding for private schooling but only if they also regulate and oversee the private schools sufficiently to ensure state money actually improves the secular education those schools provide. The Article further critiques prevailing assumptions about what accountability entails, and it assesses to what extent there is real educational accountability in voucher programs today.
Beyond Title IX: Federal Legislative Antidotes to the Bullying & Harassment of Actual or Perceived LGBT & Gender Non-Conforming Students
Larry D. Robertson (Loyola University Chicago School of Law)'s abstract:
A hostile learning environment denies actual or perceived lesbian, gay, bisexual, and transgender (“LGBT”) and gender non-conforming students an education. Although Title IX of the Educational Amendments of 1972 (“Title IX”) can protect actual or perceived LGBT and gender non-conforming students from harassment, it sometimes fails. This Article argues that Congress should pass the Student Non-Discrimination Act of 2013 and the Safe Schools Improvement Act of 2013 to remedy the legal shortcomings of Title IX and protect actual or perceived LGBT and gender non-conforming students from the harassment and bullying they endure.
Wednesday, October 9, 2013
With at least 116 single-sex public schools across the country and 390 more single-sex classes in some subjects, Professors David Cohen (Drexel/Earle Mack) and Nancy Levit (UMKC) argue that gender-segregated education is long due for review by the U.S. Supreme Court. In their new article, Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education, the authors present their case that “sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”” An excerpt from the introduction to Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education (Seton Hall Law Review, Vol. 44, 2014, forthcoming) is below:
The United States is seven years into an experiment with segregation in public education. This experiment, unlike the race segregation found unconstitutional in Brown v. Board of Education, is based on sex segregation. The experiment has benefitted from a peculiar alliance of political forces: conservatives, who have long believed that separation of the sexes is natural and appropriate, and some liberal groups, who see separatism either as a tool of liberation or as the lesser of bad alternatives compared to a flawed coeducational system. It resonates with a society that believes that men and women (and thus boys and girls), though equal, are inherently different. However, with seven years of experience with federally-sanctioned sex-segregated public education under the country’s belt, the arguments against sex segregation in public schools are even stronger than they were before the experiment began. Like the inherently unjust system of de jure race segregation that existed in this country, the current experiment is also unconstitutional.
In this article, we argue that this experiment must come to an end because it is educationally unsound, fundamentally discriminatory, and patently unconstitutional. We reach these conclusions by first reviewing the events that have led to state endorsed sex segregation in this country, the resulting expansion of such educational opportunities, and the legal developments since then. We break down buzzword justifications such as “choice” and “diversity” and highlight new research into brain differences (or lack thereof), educational outcomes, and sex stereotyping. In the process, we hold this expansion to the rigorous heightened scrutiny test employed by the Supreme Court for sex classifications and find that, like segregation based on race, segregating students based on sex violates the Equal Protection Clause.
Friday, October 4, 2013
This past spring, the Loyola Law Review hosted "Special Education in a New Era of Reform." It covered a wide spectrum of special education topics and included presentations by Paul Grossman, Chief Regional Civil Rights Attorney for the U.S. Department of Education, Dr. Marcia Arceneaux, former IDEA and NCLB Compliance Attorney for the Recovery School District, Professor Ruth Colker from The Ohio State University, Professor Wendy Hensel from Georgia State University, Professor Mark Weber from Depaul University, John Borkowski of Hogan Lovells, and Eden Heilman from the Southern Poverty Law Center. The articles from the symposium are now available on westlaw.
Mark C. Weber, ALL AREAS OF SUSPECTED DISABILITY, 59 Loy. L. Rev. 289 (2013).
Wendy F. Hensel, RECENT DEVELOPMENTS IN VOUCHER PROGRAMS FOR STUDENTS WITH DISABILITIES, 59 Loy. L. Rev. 323 (2013).
Eden B. Heilman, STRANGER THAN FICTION: THE EXPERIENCES OF STUDENTS WITH DISABILITIES IN THE POST-KATRINA NEW ORLEANS SCHOOL SYSTEM, 59 Loy. L. Rev. 355 (2013).
Marcia C. Arceneaux, THE IMPACT OF THE SPECIAL EDUCATION SYSTEM ON THE BLACK-WHITE ACHIEVEMENT GAP: SIGNS OF HOPE FOR A UNIFIED SYSTEM OF EDUCATION, 59 Loy. L. Rev. 381 (2013).
Lindsey H. Chopin, UNTANGLING PUBLIC SCHOOL GOVERNANCE: A PROPOSAL TO END MEANINGLESS FEDERAL REFORM AND STREAMLINE CONTROL IN STATE EDUCATION AGENCIES, 59 Loy. L. Rev. 399 (2013).
Wednesday, October 2, 2013
Last week, I posted on the release of Diane Ravitch's new book, Reign of Error: The Hoax of the Privatization Movement and the Danger to America's Public Schools. I am eagerly awaiting its arrival and will post a review once I read it. In the meantime, she offered us a fuller taste Friday in an interview with NPR. The interview indicates a no-holds-barred attack on charters, vouchers, and other reforms of the past decade, which she, of course, signed onto during the Bush administration, but now thinks better of. Speaking of school choice and charters, she threw several hard blows:
When people pay taxes for schools, they don't think they're paying off investors. They think they're paying for smaller class sizes and better teachers. . . . [Charters] have become part of the movement to turn education into a consumer product rather than a social and a public responsibility....What I mean is that you go shopping for a school. I don't believe in school choice. I believe that every neighborhood should have a good public school. And if the parents don't want the good local public school and they want to send their child to a private school, they should do so — but they should pay for it.
After this stinging critique, she emphasized that our schools are not in some new crisis. Rather, they are performing better than ever before. With that said, we do have significant pockets of dropouts and low performance. But these results are not a product of our schools somehow having sunk to new lows in terms of the education they offer. She cites the problem as the continuing presence of concentrated poverty. "Where there are low test scores, where there are higher dropout rates than the national average, is where there is concentrated poverty."
Much to my chagrin, she does not, however, seem to propose policies to deconcentrate poverty. Maybe she considers them unrealistic. Instead, she prescribes smaller classes, pre-k, and arts programs. I would agree that those are important programs that can provide significant help, particularly pre-k. I just hope she is not giving up on remedying the root cause of the problem.
Monday, September 30, 2013
Priscilla Wohlstetter, Joanna Smith, and Caitlin C. Farrell have published In Choices and Challenges: Charter School Performance in Perspective (Harvard Education Press, 2013). The book analyzes more than 400 journal articles and think-tank papers regarding charter school innovation, student performance, accountability outcomes, competition and more.
Cribbing from the press release:
On student achievement, which Wohlstetter calls the “lightning-rod issue,” she says “the-big finding that continues to hold up in state after state” is that “charter schools are over-represented at both the higher and lower ends of student achievement.” Which raises the policy question: “Why are we not replicating schools at the high end, and why are authorizers not closing down schools at the low end?”
On the question of how charter schools use their autonomy, the answer seems to be: not much and not terribly well.
Monday, September 23, 2013
Diane Ravitch has a new book out this week titled "Reign of Error: The Hoax of the Privatization Movement and the Danger to America's Public Schools." Ravitch does not appear to say American schools are excellent, but she argues that they are not in crisis and that the constant assertion that they are in crisis undermining them. In other words, the tail is wagging the dog in school reform. She also points out that we label students and schools as failing because we set unrealistic goals for them. This is not to say that we should set low goals, but that we can't expect students at severe disadvantage to achieve at the levels of privileged kids unless we first address those factors that make students disadvantaged. Likewise, it is not fair to compare our education system to Finland's--the top performing in the world--because Finland's poverty rate is only 5 percent whereas ours is about 7 or 8 times that rate.
Tuesday, September 17, 2013
Several states like Nebraska, Wyoming, Tennessee and Wyoming, to name just a few, have seen school finance litigation on behalf of rural districts. Other states like North Carolina have included rural districts as a distinct class of disadvantaged districts within broader litigation. Notwithstanding these examples, it is sometimes easy to miss the plight of rural districts, particularly in states that are not rural. In states like New York and New Jersey, the neediest districts and students find their homes in the same places as school finance litigators: large urban centers. Advocates and reasearchers do not have to look far to find obvious and gross inequity.
A new article by Kyle E. Gruber, Bringing Home the Bacon: A Case for Applying the New Jersey Urban School Funding Remedy from Abbott v. Burke to Poor Rural School Districts, 2 Colum. J. Race & L. Rev. 167 (2012), highlights how rural districts have been overlooked in New Jersey, the home of the strongest school finance precedent in the nation. Litigants filed suit and apparently established constitutional violations 15 years ago, but unlike urban districts, have yet to receive a remedy.
Monday, September 9, 2013
Meera E. Deo (Visiting Scholar, UC Berkeley Center for the Study of Law & Society, Assoc. Professor, Thomas Jefferson School of Law) has written Empirically-Derived Compelling State Interests in Affirmative Action Jurisprudence. Professor Deo draws from empirical evidence to present support for educational diversity as well as alternatives to diversity as compelling state interests. The Article highlights the student perspective using data collected directly from students attending Michigan Law School after a state-wide ban on affirmative action. (Tip of the hat to Professor Wendy Greene for passing along this article.)
Cribbed from Professor Deo's abstract:
Traditionally, educational diversity has been the only compelling state interest that satisfies strict scrutiny in affirmative action challenges. This Article provides additional support for the interest of educational diversity, and proposes three additional compelling state interests for courts to consider. Support for these compelling state interests comes directly from detailed quantitative and qualitative analyses of empirical data collected from Michigan Law students, relating to their preferences for diversity, perceptions of campus climate, and professional aspirations. These findings indicate that educational diversity should remain a compelling state interest, and that courts should also consider the importance of (1) avoiding racial isolation, (2) promoting service to underserved communities, and (3) facilitating diversity in American leadership.
Read Empirically-Derived Compelling State Interests in Affirmative Action Jurisprudence here.
Wednesday, August 28, 2013
In a review of the 41 NCLB waivers that the Department of Education has granted, the Campaign for High School Equity finds:
that many states have failed to address clearly and fully the needs of our most vulnerable students. Some states, with the approval of the U.S. Department of Education, abandon a primary focus on subgroup accountability—a central tenet of NCLB—and weaken efforts to close achievement gaps and improve education for all students. Significant progress has been made under NCLB to ensure that the needs of all students—including underserved students—mattered; a school could not be deemed successful, regardless of overall performance, if a subgroup of students was struggling. Provisions of NCLB have ensured that the achievement of all students by subgroup was counted; school progress regarding improving achievement of subgroups of students was publicly reported, and when a school did not adequately improve student achievement for subgroups of students, an intervention was triggered to better support student success. While NCLB has many provisions that need revision, subgroup accountability provisions have shone a bright light on the achievement of all students and have ensured that the children who need it most get help. Yet, our analysis shows that several of the Administration’s approved ESEA waivers undermine subgroup accountability, instead of making it the central focus of statewide accountability systems.
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.