Digital Commons Network^™

Defiance, Lackland H. Bloom Jr

St. Mary's Law Journal

No abstract provided.

A Performative Model For Conducting Critical Race Analysis: Josephine Baker, Modern Dance, And Utilizing Narrative To Transform Legal Doctrine, Patrick C. Brayer

Seattle Journal for Social Justice

No abstract provided.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow

University of Miami Law Review

In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …

Healing Racial Trauma From Public School Systems, Lisa Y. Collins

Journal of Research Initiatives

Oregon needs Black educators in the K-12 public school system. In 35 school districts throughout the state, the number of students of color has risen by over 40% in recent years (Oregon Chief Education Office, 2019). The number of educators of color in the state is under 10%. The number of Black educators is even lower. Research has shown that Black educators improve all students' academic, cultural, and social aspects, especially Black students. Nationally, Black educators were impacted by the Brown v. Board of Education ruling. At that time in history, Black communities fought for civil rights as they experienced …

A New Deal For A Right To Work: Confronting Racism And Inequality In The U.S., James A. Gross

The Scholar: St. Mary's Law Review on Race and Social Justice

Whites have always controlled the country’s major economic and political institutions at all levels. Starting with slavery, the enduring and pervasive dogmas of White superiority and Black inferiority, once openly asserted as “keeping Negroes in their place,” were also used to restrict Black men and women to subordinate “negro jobs.” The vast riches of the United States “were available to all who had the enterprise to take them and the good fortune to be White.”

This denial of the right to work in freely chosen endeavors continues to have immense consequences for Black men, women, and children in every aspect …

Brown, History, And The Fourteenth Amendment, Christopher W. Schmidt

Notre Dame Law Review

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron

Touro Law Review

No abstract provided.

The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt

Chicago-Kent Law Review

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.

In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically …

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Indiana Journal of Global Legal Studies

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life. In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

Using The Master’S Tool To Dismantle His House: Derrick Bell, Herbert Wechsler, And Critical Legal Process, William Rhee

Concordia Law Review

This Article retells the life stories of Derrick Bell, a founder of Critical Race Theory, and Herbert Wechsler, a founder of the Legal Process School, to suggest a synthesis of their often conflicting paradigms—Critical Legal Process. Critical Legal Process’s fundamental question is whether the Master’s tool, the so-called rule of law, can be considered—in the words of Wechsler’s most famous article—a genuine “neutral principle.” Can the Master’s favorite tool be repurposed to dismantle the very house it built? Can the same rule of law that was abused to build the racist Jim Crow system not only dismantle that explicitly racist …

Awaiting The Rebirth Of An Icon: Brown V. Board Of Education, R. Lawrence Purdy

Mitchell Hamline Law Review

No abstract provided.

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Northwestern Journal of Human Rights

No abstract provided.

Parents Involved And The Struggle For Historical Memory­, Mark Tushnet

Indiana Law Journal

In his Jerome Hall Lecture, Professor Tushnet addresses the legacy of Brown v. Board of Education in the more recent case of Parents Involved in Community Schools v. Seattle School Dist. No. 1 (PICS), which struck down the voluntary school integration programs used in Seattle and Louisville. As Chief Justice Roberts wrote, an important “debate” in the PICS case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory. The politics of memory in PICS is not simply a struggle …

Growing Charter School Segregation And The Need For Integration In Light Of Obama’S Race To The Top Program, Brooke Finley

San Diego Law Review

This Article contends that increasing the number of charter schools across the United States per the Obama administration’s RTT initiative is not the answer to closing the racial and economic achievement gap, at least not without significantly more accountability and oversight. Part II describes the RTT initiative and its promotion of more charter schools. This Article suggests that advocating for charter schools may be problematic without proper supervision put in place by the government. Charter schools are privately managed schools that receive public funding, yet they are exempt from some rules that all other taxpayer-funded schools must abide by that …

Juridical Subordination, Roy L. Brooks, Kelly C. Smith

San Diego Law Review

The purpose of this Article is to play out the various conceptualizations of the black equality interest in post-civil rights America. How is the claim of juridical subordination manifested in current Supreme Court cases, and what might civil rights law look like if the Court were to avoid juridical subordination? Our ambition is not to analyze every landmark Supreme Court civil rights case—page limitations prevent us from doing that—but to provide a framework for analysis, setting the table for the juridical subordination inquiry. Furthermore, we do not here attempt to reconcile the disparate ways in which the black equality norm …

Brown, Fisher, And The Necessity Of Context To Achieve Racial Equity In Public Institutions, Kiyana Davis Kiel

San Diego Law Review

The United States Constitution is a social, as well as legal, document and should be interpreted and applied as such. Context is crucial in constitutional interpretations. The law cannot and should not exist in a vacuum. When interpreting the Constitution, the lasting and pervasive impact of structural and institutional racism and the undercurrents of white privilege should not be ignored. In other words, when interpreting the Constitution, the civil rights of non-white society members must be acknowledged and addressed. Purely literal interpretations of law must give way to both legal—precedential—and societal contexts and, in particular, racial equity in the context …

The Battle Of The Branches: The Impact Of The Judiciary And Title Vi On Desegregation In The American Public School System, Kelsey D. Mccarthy

San Diego Law Review

This Comment analyzes the debate regarding the catalyst for desegregation in the American public school system: judicial intervention or Congress’s legislative action, specifically through implementation of Title VI, which authorized revocation of funds to school districts that did not comply with the desegregation mandate. Part I will summarize the historical events and developments that paved the way to the Supreme Court’s decision in Brown. Part II looks at how the Brown decision alone was not enough to effectuate immediate change in southern schools, despite the court’s order in the second Brown decision, Brown v. Board of Education (Brown II) that …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia's Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Akron Law Review

James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected …

Eviscerating The Voting Rights Act And Moral Authority: Freedom To Discriminate Comes With A Price, Patricia A. Broussard

Journal of Race, Gender, and Ethnicity

No abstract provided.

Judicialization Of Political Conflict: Evidence Of Brown V. Board Of Education’S Effect In Newspaper Opinion, Neal Allen

Saint Louis University Public Law Review

No abstract provided.

Turnaround In Reverse: Brown, School Improvement Grants, And The Legacy Of Educational Opportunity, Natasha M. Wilson, Robert N. Strassfeld

Cleveland State Law Review

As we reflect upon the sixtieth anniversary of Brown v. Board of Education, it is critical to not only assess policies advanced during the Obama administration that are aimed at reducing the continuing disparity for minority and economically disadvantaged students, but to also reflect upon what Secretary Duncan called the paradox of educational progress that continues to persist. Part II explores the effort to realize Brown’s promise of integration and equal educational opportunity. It describes a slow but significant history of gains, which has since been thwarted as Brown has been rendered doctrinally impotent. It then considers the relationship …

Continued Disparities In School Facilities: Analyzing Brown V. Board Of Education’S Singular Approach To Quality Education, Corsica D. Smith

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

University of Michigan Journal of Law Reform

Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …

Brown V. Board Of Education And National Federation Of Independent Business V. Sebelius: A Comparative Analysis Of Social Change, Brian G. Gilmore

University of Arkansas at Little Rock Law Review

No abstract provided.