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The Battle Of The Branches: The Impact Of The Judiciary And Title Vi On Desegregation In The American Public School System, Kelsey D. Mccarthy Nov 2015

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 …


Brown, Fisher, And The Necessity Of Context To Achieve Racial Equity In Public Institutions, Kiyana Davis Kiel Nov 2015

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 …


Juridical Subordination, Roy L. Brooks, Kelly C. Smith Nov 2015

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 …


Growing Charter School Segregation And The Need For Integration In Light Of Obama’S Race To The Top Program, Brooke Finley Nov 2015

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 …


The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii Sep 2015

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 Jun 2015

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 Apr 2015

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.


An Empirical And Constitutional Analysis Of Racial Ceilings And Public Schools, Michael Heise Feb 2015

An Empirical And Constitutional Analysis Of Racial Ceilings And Public Schools, Michael Heise

Michael Heise

No abstract provided.


Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise Feb 2015

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Michael Heise

No abstract provided.


Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise Feb 2015

Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise

Michael Heise

By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education the Warren Court established one of its enduring - if under-appreciated - legacies: The increased empiricization of the equal educational opportunity doctrine. All three major subsequent legal efforts to restructure public schools and equalize educational opportunities among students - post-Brown school desegregation, finance, and choice litigation - evidence an increasingly empiricized equal educational opportunity doctrine. If my central claim is correct, it becomes important to consider the consequences of this development. I consider two in this Article and find both benefits …


Assessing The Efficacy Of School Desegregation, Michael Heise Feb 2015

Assessing The Efficacy Of School Desegregation, Michael Heise

Michael Heise

No abstract provided.


Judicialization Of Political Conflict: Evidence Of Brown V. Board Of Education’S Effect In Newspaper Opinion, Neal Allen Jan 2015

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.


The Ironies Of Affirmative Action, Kermit Roosevelt Iii Jan 2015

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

All Faculty Scholarship

The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …


"Law Is Coercion": Revisiting Judicial Power To Provide Equality In Public Education, José F. Anderson Jan 2015

"Law Is Coercion": Revisiting Judicial Power To Provide Equality In Public Education, José F. Anderson

All Faculty Scholarship

This article is an attempt to start a conversation about where we find ourselves in the plight to help our most challenged public schools. It is not intended to be a comprehensive solution to the problem, but rather a hard look at how, after decades of many efforts, we are further away from the equal education contemplated by the United States Supreme Court's historic decision in Brown v. Board of Education. This article does not desire to simply cast blame for the failures of our children, but to send a reminder that, as Frederick Douglass would say, we can hardly …


Turnaround In Reverse: Brown, School Improvement Grants, And The Legacy Of Educational Opportunity, Natasha M. Wilson, Robert N. Strassfeld Jan 2015

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 …


Interpretation, Jamal Greene Jan 2015

Interpretation, Jamal Greene

Faculty Scholarship

Interpretation is the means by which the Constitution and its clauses are brought to bear on actual cases and controversies. Although much of the Constitution appears self-explanatory, as with its requirement that the president be at least thirty-five years old, much is subject to reasonable disagreement. The approaches to interpretation that form this chapter’s subject are the main tools scholars and judges have developed to resolve that disagreement. Those tools encompass five domains of argumentation, broadly conceived: text, history, structure, precedent, and consequences. As a general matter, interpretation that draws on resources wholly outside these five domains — via an …