Law Commons^™

Book Review Of Getting Around Brown: Desegregation, Development, And The Columbus Public Schools, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Book Review Of The Separate City: Black Communities In The Urban South, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Book Review Of Forced Justice: School Desegregation And The Law And Race Relations Litigation In An Age Of Complexity, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Book Review Of Make Haste Slowly: Moderates, Conservatives, And School Desegregation In Houston, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Searching For Equity Amid A System Of Schools: The View From New Orleans, Robert A. Garda Jr.

Robert A. Garda

Hurricane Katrina leveled both the buildings and governance structure of the New Orleans school system. The system was transformed from one elected school board controlling nearly all the schools to a system of schools with sixty-three school districts operating within the city’s geographic boundaries that are run by forty-four independent school boards. There is not a more decentralized school governance structure in the United States. This article discusses how this new system of schools is attempting to achieve equal educational opportunities for its most vulnerable and at-risk student populations: the poor, minorities, students with disabilities, and English Language Learners.

For …

Accidentally On Purpose: Intent In Disability Discrimination Law, Mark C. Weber

Mark C. Weber

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no …

School Surveillance And The Fourth Amendment, Jason P. Nance

Jason P. Nance

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

The Fraudulent Case Against Affirmative Action: The Untold Story Behind Fisher V. University Of Texas, Mark S. Brodin

Mark S. Brodin

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the …

Justiciability And The Role Of Courts In Adequacy Litigation: Preserving The Constitutional Right To Education, Robynn K. Sturm, Julia A. Simon-Kerr

Julia Simon-Kerr

In the first study of opinions handed down in education adequacy litigation between January 2005 and January 2008, this paper shows a marked shift away from outcomes favorable to adequacy plaintiffs. Following two decades in which courts spurred significant reforms in our nation’s neediest schools by interpreting the education clauses of their state constitutions to guarantee an “adequate” education for all students, the years 2005 to 2008 have seen a dramatic change in the judicial response to adequacy litigation. Through an analysis of the latest body of cases, this paper shows that separation of powers concerns have begun to drive …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber

Mark C. Weber

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

How Quickly We Forget: The Short And Undistinguished Career Of Affirmative Action, Robert Parrish

Robert Parrish

Diversity initiatives in higher education, also known as affirmative action are nearing their nadir. For those who have been watching the jurisprudence and the progression of events closely this should come as little surprise. These initiatives have been under attack since their very inception and now sit teetering on the brink of being declared unconstitutional as the United States Supreme Court considers Fisher v. Texas. Beginning with Regents of California v. Bakke in 1978, the Supreme Court has gradually and consistently whittled away these higher education diversity programs, leaving them currently in a vulnerable and legally precarious position. The Court’s …

The Legal Impact Of Emerging Governance Models On Public Education And Its Office Holders, Robert A. Garda Jr., David Doty

Robert A. Garda

The idea that changing the formal structure of governance can lead to better schools is rooted in American political and intellectual history. Politicians, career educators, parents, business leaders, and investors continue to wrangle over the control of public schools all across the country. With these battles for control have come more lawsuits, more laws, and more administrative regulations dictating the governance structures of educational institutions. Indeed, one could argue that, in recent years, debates over how schools and school districts should be governed have subsumed the curriculum debates over how and what children should be taught. Leadership matters, and therefore …

Bullying Across The Lifecourse: Redefining Boundaries, Responsibility, And Harm, Nancy J. Knauer

Nancy J. Knauer

Over the last fifteen years, our understanding of bullying has experienced a radical redefinition. In our schools, universities, workplaces, and assisted living facilities, behavior that we once dismissed as “horseplay” or “teasing” has increasingly been labeled as unacceptable and, in some instances, criminal. We seem to have reached one of those societal tipping points where certain behaviors we once took for granted are no longer acceptable. Not that long ago, sexual harassment was simply the cost of being female in the workplace, but the 1980s saw a period of redefinition when sexual harassment was reinterpreted and understood to be a …

"All Areas Of Suspected Disability", Mark C. Weber

Mark C. Weber

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of …

Interest-Convergence And The Disability Paradox: An Account Of The Racial Disparities In Disability Determinations Under The Ssa And Idea, Jana R. Dicosmo, Robert L. Hayman, Jordan G. Mickman

Robert L. Hayman

No abstract provided.

Disabled Students' Rights Of Access To Charter Schools Under The Idea, Section 504 And The Ada, Robert A. Garda Jr.

Robert A. Garda

Charter schools are under increasing attack for denying admission to disabled students. But traditional schools also turn away disabled students, often preventing them from attending schools in their neighborhood or within their district. This Article discusses when a school is permitted under federal disability law to deny admission to a disabled student. After nearly four decades of special education jurisprudence and regulatory guidance, the circumstances under which a student with a disability may be denied admission to a particular school are still remarkably unclear. This Article first discusses the "zero-reject" principle underlying the Individuals with Disabilities Education Act and concludes …

Culture Clash: Special Education In Charter Schools, Robert A. Garda Jr.

Robert A. Garda

Charter schools and special education for disabled students are based on conflicting education reforms and agency oversight principles. Charter schools operate in a culture of regulatory freedom and flexibility. They arose out of the modern era of accountability reform, in which student outcomes are the primary measure of school success and the driving engine of agency oversight. In stark contrast, special education laws were conceived in the civil rights era of education reform, which emphasized process and paid little attention to outcomes. The education of disabled students is steeped in a culture of regulatory oversight focused on rigid compliance with …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

The White Interest In School Integration, Robert A. Garda Jr.

Robert A. Garda

Scholarship concerning desegregation, affirmative action and voluntary integration is primarily, if not exclusively, focused on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools despite these interests underpinning over thirty years of Supreme Court integration jurisprudence. In this article, I explore the academic and social benefits whites receive in multiracial schools, and I do so from a white parent’s perspective. The article begins by explaining the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation jurisprudence. White parents must understand that their “buy-in” …

Those Who Can't, Teach: What The Legal Career Of John Yoo Tells Us About Who Should Be Teaching Law, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor …

Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster

Ian Ayres

The Supreme Court’s affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of “narrow tailoring.” While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter …

The New Idea: Shifting Educational Paradigms To Achieve Racial Equality In Special Education, Robert A. Garda Jr.

Robert A. Garda

African American students are being re-segregated in today's public schools by their disproportionate placement in special education classes for the disabled pursuant to the Individuals With Disabilities in Education Act (IDEA). At the same time, the overall number of children found disabled and entitled to special education under the Act has skyrocketed over the past decade, leaving special education classes with swollen roles and inadequate resources. Congress attempts to remedy this divisive dual eligibility crisis when it re-authorized the IDEA in 2004 by promoting an educational paradigm of individualized instruction in general education. The new IDEA seeks to "fix" special …