Education Law Prof Blog

Recent Scholarship on Title IX and Campus Sexual Assault Procedures

Two articles posted to ssrn.com examine the recent criticism of Title IX procedures for the accused in campus sexual assault investigations. Details are below.

Erin Buzuvis (Western New England), Title IX and Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault, 78 Montana L.R. 71 (2017)

Excerpt from Prof. Buzuvis's abstract: This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. The Article argues that neither the fact of litigation by disciplined students nor the examples of their occasional success undermines Title IX and its application to sexual assault. Such litigation is not evidence of a problem with Title IX or a reason to withdraw universities’ responsibility to engage a prompt and equitable response to sexual assault.

Alexandra Brodsky (Yale), A Rising Tide: Learning About Fair Disciplinary Process from Title IX, J. Legal Ed. (2017)

Adapted from the author's abstract: College campuses are a site of intractable clash between advocates fighting gender violence and proponents of students’ due process rights – or so the popular press, legal journals, and some recent law suits claim. In fact, these two camps share much, including common ideological commitments to education access, investment in school discipline systems’ actual and perceived legitimacy, and benefit under a rapidly developing legal regime. Despite assumptions to the contrary, federal school sexual assault law provides accused students with procedural rights unavailable elsewhere in federal law for students accused of any other form of misconduct. One might think, then, that advocates for student due process would celebrate the expanded procedural rights available in gender violence disciplinary hearings. Despite these commonalities, critics and advocates maintain a narrative of warring factions, explained in large part by rape exceptionalism and the dominance of criminal law in the public imagination regarding responses to rape and other sexualized harms. This Article maps out the two movements’ overlooked common ground in order to demonstrate the great loss to students that results from the warring factions narrative.

Scholarship: Re-Conceptualizing the Response to Campus Sexual Violence in a Closed Institutional System

Campus sexual assault is being discussed in the mainstream media recently following Education Secretary Betsy DeVos's statement that the ED's current guidelines to campuses are not adequately protecting students accused of sexual assault and statements by the acting assistant secretary for civil rights stating that Title IX rules result in false accusations. In their essay, Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, authors Hannah Brenner (California Western) and Kathleen Darcy (Michigan), raise a different aspect of the problem: that the closed institutional nature of higher education settings add to the difficulty of holding people accountable for campus sexual assault. The authors view campuses through the characteristics of prison and the military, and conclude that colleges' quasi-closed system may hinder "crafting better remedies to both prevent and reform the response to sexual violence." The essay is Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, 102 Cornell L. Rev. Online 127 (2017), and is available here.

Scholarship: A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty

Nancy Cantalupo, and William Kidder have posted their article, A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty on SSRN. (Utah Law Review, forthcoming). From the Abstract:

This article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment.

Scholarship: Reconciling Liberty and Equality Interests in Education Cases; Applying O'Bannon v. NCAA

Joshua Weishart, Equal Liberty in Proportion (forthcoming William & Mary Law Review)

Joshua Weishart (West Virginia) encourages state courts to balance both liberty and equality in addressing state constitutional claims of education disparities. The article is available on SSRN here. Excerpted from the abstract:

This Article proposes that courts analyze the state constitutional right to education as a claim for “equal liberty” and subject it to a new standard of review. State court adjudication of the right to education over the past five decades reflects ambivalence with heightened scrutiny in favor of an ad hoc means-ends review. That review confers substantial deference to legislative judgment and has excused persistent educational disparities based on the “reasonableness” of legislative efforts. To overcome these shortcomings and lingering justiciability concerns, courts need a principled methodology for reconciling liberty and equality interests.

Against tradition calling for these interests to be “balanced,” I contend that equality and liberty can yet maintain a positive, directly proportional relationship in the law. Applying direct-proportionality review, the judicial lens should focus on whether the state’s actions advance both equality and liberty interests in tandem and whether the margin between these ends is proportional so as to protect children from the harms of educational disparities.

Matt Mitten, Why and How the Supreme Court Should Have Decided O'Bannon v. NCAA (Antitrust Bulletin)

Matt Mitten (Marquette) suggests ways to apply the Ninth Circuit's decision in O'Bannon v. NCAA after the Supreme Court failed to grant certiorari in the case to resolve confusion about how antitrust law constrains the NCAA’s governance of intercollegiate athletics. Below is an excerpt from the abstract, which is available on SSRN here:

Despite requests by both parties, the United States Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates section 1 of the Sherman Act. This article makes some recommendations for applying section 1 to NCAA student-athlete eligibility rules and input market restraints, which will better promote consumer welfare, protect student-athletes’ economic rights, and permit the NCAA to promote the unique features of intercollegiate sports without unwarranted judicial micromanagement.

Woodson on Why Kindergarten Is Too Late for Education Support

Kevin Woodson's recent article, Why Kindergarten Is Too Late: The Need for Early Childhood Remedies in School Finance Litigation, 70 Ark. L. Rev. 87 (2017), recommends that funding for early childhood education in low-income districts should be included in states' education clause responsibilities. Excerpted (and slightly altered) from Prof. Woodson's article:

The case for early childhood programs as remedies for inadequate educational opportunity is now more compelling than ever. Scores of scientific and social science studies over the past ten years have made increasingly clear the extent to which differences in the quality of care and enrichment that children experience in their earliest years powerfully shape their future educational careers and thereby reinforce intergenerational cycles of inequality. [T]his Article aims to resurrect, and reinvigorate, [Harvard School of Education Dean Jim] Ryan's argument in favor of preschool as an essential remedy in education adequacy litigation. But whereas Ryan--based in part on his reading of the existing social science literature--focused specifically on adding one additional year of pre-kindergarten schooling, this Article argues for an even more robust expansion of early childhood-focused efforts. Relying upon a mounting body of research on the importance of children's home literacy environments and development experiences during infancy and toddlerhood--as well as empirical findings from a number of controlled field experiments--this Article also argues that states should implement and fund programs to provide developmental support for economically disadvantaged children in the first years of life.

Scholarship on Teacher Tenure and Lawyers for Campus Sexual Assault Survivors

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

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

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

This Article shows the slow development of teacher performance reviews over time; it begins with a history of teacher evaluation from the colonial era to the present, discusses the introduction of Valued Added Modeling (VAM) to ensure student achievement, provides an overview of current teacher evaluation models and concludes by identifying policy considerations in creating accurate, comprehensive and fair evaluation systems.

Kelly Alison Behre (UC Davis Law), Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys, 65 Drake L. Rev. 293 (2017)

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kristi Bowman:  The Failure of Education Federalism

Bowman's article uses Michigan's public education system to show the decline in public investment in education and the need for the federal government to "embrace a different model of federalism, cooperative federalism." Bowman writes, "In particular, the judiciary can create a federal floor of educational quality via Substantive Due Process and Equal Protection Clause jurisprudence, especially if it is willing to consider reviewing educational quality claims under a rational basis with bite standard." The article is available for download on ssrn.com here.

 

Tamara Rice Lave: Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases

The Obama administration's efforts requiring higher ed institutions to take steps to prevent campus sexual misconduct under Title IX is likely to wither regardless of who becomes the new education secretary (see Derek Black's take on the Education Secretary's confirmation hearings here). But the ED may be more willing to explore the area of Tamara Rice Lave explores in her article, Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases. In the article, Lave discusses how institutions may not be adequately protecting students' procedural due process rights and concludes by "considering how universities can more fairly and effectively respond to sexual assault." The article is available here.

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

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

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

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

Contact Information. All submissions and questions can be sent directly to [email protected]. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:

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

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

 

Thomas Jefferson School of Law Student Writing Competition In Disability Law

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

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

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

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

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

Derek Black Discusses Ending Zero Tolerance on Tavis Smiley Show

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

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

CALL FOR PAPERS

Children’s Legal Rights Journal

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

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

Contact Information. All submissions and questions can be sent directly to [email protected]. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:

Erika C. Weaver

Solicitations Editor

25 E. Pearson, 11th Floor

Chicago, IL 60611

Phone:312.915.6481

Fax: 312.915.6485

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

Professor Jim Hilbert (Mitchell Hamline) has posted Restoring the Promise of Brown: Using State Constitutional Law to Challenge School Segregation on SSRN that discusses how constitutional claims can reanimate Brown and address school segregation. The abstract is below:

Despite over six decades of litigation, both state and federal court strategies have largely failed to address inequalities and segregation in America’s schools. More than sixty years after Brown v. Board of Education, our schools are still deeply unequal, and school segregation has generally been increasing over the past several decades. In both academic and social outcomes, students in these segregated schools lag far behind their peers.

This article examines the viability of using state constitutional law to address school segregation. For more than forty years, state courts have played a major role and have had varied success in addressing issues of educational inequality under school finance and educational adequacy theories. A handful of cases have used state constitutional law to challenge school segregation, including a brand new case, Cruz-Guzman v. State of Minnesota, which restarts the discussion on how best to restore the original promise of Brown.

Federal courts long ago departed sharply from the initial promise of the Brown decision and have spent the last few decades undermining desegregation. While hailed as one of the Supreme Court’s greatest accomplishments, the iconic Brown decision has been largely dismantled. Yet the goals of Brown remain a priority.Educational adequacy cases targeting school segregation in some respects are a combination of the best of federal and state courts. Such potential cases represent the next logical step in addressing inequality in our schools, combining the many advantages of state court litigation with the original promise of Brown.

McAllister on Rethinking School Cell Phone Searches

Mark McAllister (Indiana Tech) has posted an article on SSRN exploring regulating student cell phone searches through an administrative warrant process. The abstract is below.

Rethinking Student Cell Phone Searches by Mark Chase McAllister (Penn State Law Review, 2016)

For K-12 students, this article advocates a middle-ground solution that accounts for the unique privacy interests that apply to all cell phones while preserving the need to control the K-12 learning environment without undue judicial supervision. This article thus proposes that K-12 schools adopt an internal system of checks and balances consisting of a higher-level, independent review of a school official’s desire to search a student cell phone, along with an administrative warrant the supervising official must sign before the search may be carried out.

After weighing the pros and cons of extending Riley to the schoolhouse gates, this article arrives at the simple conclusion that, despite its narrow holding, Riley’s sweeping pronouncements regarding the unique privacy concerns inherent in the modern cell phone demand a rethinking of the law governing student cell phone searches. Riley stated, for example, that the privacy protections owed modern cell phones are even greater than what we enjoy in our homes, the area that has traditionally received the greatest Fourth Amendment protection, thereby implying that cell phone searches, of any kind and in any place, are owed the greatest possible constitutional protection. In addition, although Riley involved searches of arrestees, who have traditionally enjoyed diminished privacy interests, the Court nevertheless found the privacy-related concerns in cell phones weighty enough to require a warrant, notwithstanding arrestees’ reduced expectations of privacy. This exact rationale can be applied to K-12 and college students, who, like arrestees, have also enjoyed reduced Fourth Amendment protections. 

This article concludes by proposing heightened Fourth Amendment protections for both K-12 and college cell phone searches. First, this article argues that although college students enjoy reduced expectations of privacy in certain instances, particularly for administrative inspections where campus safety concerns predominate, the justifications for such rulings do not apply to a cell phone’s digital contents.

 

Scholarship: Gerber On Justice Thomas And Fisher; Gomez-Velez On Philanthrocapitalism And Education Reform

Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education

Scott D. Gerber (Ohio Northern Univ.) examines Justice Thomas' Fisher I opinion in an recent article (50 Rich. L.R. 4, (2016)). From the abstract posted on ssrn.com: This article originated as a paper for an affirmative action symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association. The article places Justice Thomas’s concurring opinion in Fisher v. University of Texas (“Fisher I”) in the larger context of his voluminous writings on race in general and affirmative action in particular. The article also discusses the commentary on Justice Thomas’s Fisher I opinion because the reaction to what he writes, especially on matters of race, is almost as important as the opinions themselves. The article concludes with some brief comments on Schuette v. Coalition to Defend Affirmative Action, a 2014 case about the constitutionality of a 2006 amendment to the Michigan state constitution banning racial preferences in Michigan, and on Fisher v. University of Texas (“Fisher II”), which the Court will be deciding by the end of June 2016. Justice Scalia’s recent death figures prominently in the concluding section.

Common Core State Standards and Philanthrocapitalism: Can Public Law Norms Manage Private Wealth’s Influence on Public Education Policymaking?

 Natalie Gomez-Velez (CUNY) examines "the phenomenon of philanthrocapitalism in current education reform, with a focus on the Common Core State Learning Standards initiative" in a forthcoming article in the Michigan State Law Review, posted on ssrn.com. From the abstract: Part I describes the role that a small group of philanthropists played in setting and catalyzing the Standards development and implementation. This description includes private philanthropists’ interactions with federal, state, and local government actors and other stakeholders. It also examines their work in the political process and the public discourse. Part II then considers the Common Core initiative over the last five years, including the role of philanthrocapitalists, nonprofits, and the state and federal governments, and the recent public backlash against and reconsiderations of the Standards. Part III considers the proper scope and limits of private philanthropists’ role in public education policymaking from the perspective of public law norms, governance, and policymaking. Drawing upon structural governance models designed to support robust public engagement in education policymaking, as well as those designed to prevent agency capture, the Article closes by considering methods for placing appropriate boundaries on the influence of philanthrocapitalists. At the same time, it acknowledges the difficulty of imposing meaningful limits in a political environment dominated by the influence of private wealth.

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

Black on Taking Teacher Quality Seriously

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

 

Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.

This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.

Parker on Brown's 60th Anniversary - A Story of Judicial Isolation

 

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

 

Sixty years ago the Supreme Court announced, “In the field of public education, the doctrine of ‘separate but equal’ has no place.”1 In 1954, no one doubted the significance of that command, even among those who actively resisted it.

Brown v. Board of Education 2 has now outlasted Plessy v. Ferguson, which for 58 years sanctioned “separate but equal”. Does that necessarily mean, however, that Brown has eclipsed Plessy in significance? Has the power of Brown instead waned in its advancing age? Granted, few publically decree Plessy as the best guide to race relations in the twenty-first century; yet, our schools are still segregated and unequal in ways reminiscent of Plessy. That naturally leads one to question the lasting significance of Brown, particularly as it turns 60.

This chapter examines the legacy of Brown through the lens of two sets of school desegregation cases. The first are four cases that the Supreme Court considered in its Brown v. Board of Education decision — cases from Delaware, Kansas, South Carolina, and Virginia. The second are school desegregation cases litigated in the Middle District of Alabama.

Robinson on Disrupting Education Federalism

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

The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation’s education goals. One of the nation’s unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform, I argue that disrupting the nation's longstanding approach to education federalism – which I define as the balance of power between federal, state, and local governments that emphasizes substantial state autonomy over education – is necessary for a successful national effort to achieve this goals. I then provide a foundational theory for strengthening the federal role in education by analyzing the essential elements of a successful reform effort based upon research regarding the strengths of federal education policymaking and upon identification of the missing elements of current reforms. Finally, I respond to many of the potential arguments against disrupting education federalism. For Instance, I argue that National Federation of Independent Business v. Sebelius continues to provide ample room for Congress to expand the federal role in education in ways that are needed to build a more equitable education system. I also explain that although strengthening the federal role in education will reduce some forms of state and local control over education, it also will provide states and localities new forms of control.

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

Ann Mallet Killenbeck (Arkansas)'s article on Fisher II,  Ferguson, Fisher, and the Future: Diversity and Inclusion As A Remedy for Implicit Racial Bias, 42 J.C. & U.L. 59, 60-63 (2016), posits that the Supreme Court will use Fisher II to guide higher ed institutions' racial diversity policies. Below is an excerpt from Prof. Killenbeck's introduction:

My thoughts on Fisher II in this Article will be somewhat unusual. My threshold assumption is that the Court will use the case to reaffirm Grutter and clarify what is required when a college or university decides to adopt an affirmative admissions policy as a means of attaining student body diversity. As I will explain, the decision to grant review was both logical and necessary. It is actually a welcome opportunity for the Court to give badly needed guidance to both sides in this debate about how best to go about implementing those policies. Indeed, I believe that for those who wish to preserve the diversity victory in Grutter, the best possible outcome will be to have their implementation feet held to the fire of intense judicial scrutiny in Fisher II. That said, there are substantial perils in this process given the lackadaisical manner in which virtually all institutions have approached their actual educational obligations once they have taken the steps required to admit a diverse group of students.

I will also argue that this new round of litigation offers an important opportunity for affirmative action's proponents to do two interrelated things. The first is to recognize, account for, and undertake key obligations imposed by Grutter and Fisher I. The second is to seize the opportunities presented in the wake of Fisher II to strengthen their case for the value of diversity as a matter of educational policy by focusing our attention on implicit racial bias. The virtues of educational diversity identified by Justice Sandra Day O'Connor in her opinion for the Court in Grutter had solid social science foundations. The evidence cited by the Court at that time did not, however, account for an important aspect of our national malaise, the corrosive impact of implicit racial bias and stereotyping. Significant developments in this body of knowledge have the potential to bolster the Court's prior determination that diversity's “benefits are not theoretical but real.” This knowledge can, and should, be part of the dialogue as we reexamine these issues.