Law Commons^™

From Mainstreaming To Marginalization? Idea's De Facto Segregation Consequences And Prospects For Restoring Equity In Special Education, Kerrigan O'Malley

Law Student Publications

As a basic construct for recommending measures to correct the prevailing inequities in special education, this comment examines the de facto segregation impact IDEA stemming from the Supreme Court's interpretive rulings and from the Act's own enforcement norms. The analysis further identifies the equality compromising consequences of specific IDEA provisions and considers prospects for restoring equity to special needs service delivery in these areas, with a particular focus on tuition reimbursement for private school. Respecting the historical alignment of the law of race discrimination in education and the law of disability education rights, the analysis identifies inequities that prevail at …

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

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 …

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede

Faculty Scholarship

This paper argues that public education is an international human right that the U.S. ought to recognise and protect. Recognising a right to public education would correct a major inconsistency in U.S. law by bringing education rights docrtine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognises public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education.

Rights And Wrongs In The Debate Over Single-Sex Schooling, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In September 2011 an article entitled The Pseudoscience of Single-Sex Schooling appeared in the journal Science. Unlike articles typically published in peer-reviewed journals, the primary intent in this case was not to inform the scholarly community but rather to accomplish larger political and legal ends. Co-authored by eight prominent psychologists and neuroscientists, it immediately made the front pages of national newspapers and soon took the international media by storm. From the United Kingdom to Australia, New Zealand, India, and South Africa, it gave rise to a global debate about the pros and cons of single-sex schooling.

As directly …

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

Articles

The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

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

Cornell Law Faculty Publications

No abstract provided.

Reflections On Justice Kennedy's Opinion In Parents Involved: Why Fifty Years Of Experience Shows Kennedy Is Right, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

For Whom Does The Bell Toll: The Bell Tolls For Brown?, Angela Onwuachi-Willig

Faculty Scholarship

This review essay analyzes Derrick Bell's provocative new book, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004). In Silent Covenants, Professor Bell reviews Brown v. Board of Education, and inquires "whether another approach than the one embraced by the Brown decision might have been more effective and less disruptive in the always-contentious racial arena." Specifically, Professor Bell joins black conservatives in critiquing what he describes as a misguided focus on achieving racial balance in schools and argues that the quality of education for minority children, in particular Blacks, would have been better today …

Brown V. Board Of Education, Footnote 11, And Multidisciplinarity, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Embracing Segregation: The Jurisprudence Of Choice And Diversity In Race And Sex Separatism In Schools, Nancy Levit

Faculty Works

Fifty years after Brown v. Board of Education, segregation based on race and sex is sweeping the nation's educational systems. Courts are rapidly dismantling desegregation orders, and when those desegregation orders end, school districts racially resegregate. At precisely the same time this end to racial desegregation is occurring, the government is beginning to sponsor sex segregation in schools as well. The No Child Left Behind Act provides over $400 million in federal funds for experiments in education, such as single-sex schools and classes. Embracing Segregation draws connections between the end of racial desegregation and the beginning of government-sponsored sex segregation …

The Hypothetical Opinion In Grutter V. Bollinger From The Perspective Of The Road Not Taken In Brown V. Board Of Education, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Road Not Taken In Brown: Recognizing The Dual Harm Of Segregation, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

After Grutter V. Bollinger-- Revisiting The Desegregation Era From The Perspective Of The Post-Desegregation Era, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Brown V. Board Of Education: Reexamination Of The Desegregation Of Public Education From The Perspective Of The Post-Desegregation Era, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic …

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

Cornell Law Faculty Publications

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 …

Beyond Brown V. Board Of Education: The Need To Remedy The Achievement Gap, Dora W. Klein

Faculty Articles

Addresses the need to remedy the disparity in academic achievement of black and white students and examines why this disparity continues to exist in spite of the desegregation decrees issued under "Brown." Reviews how a court decides whether a school district has complied with a desegregation decree. Explains why schools are being released from desegregation decrees despite achievement gap.

The American 'Legal' Dilemma: Colorblind I/Colorblind Ii--The Rules Have Changed Again: A Semantic Apothegmatic Permutation, John C. Duncan Jr

Journal Publications

"Our Constitution is colorblind" initially meant that white majority preferences could not and should not be reflected in government action. The maxim now means race should not be reflected at all in government action. The answer to racism lies somewhere between well-reasoned "blind" hope and historically-proven skepticism. Part I of this Article discusses the ideal of the colorblind society; Part II discusses what this Article deems as Colorblind I. Part III places each colorblind argument in perspective, and seeks to illustrate that the concept of colorblindness could be an ideal, but has rather become meaningless rhetoric in an endless racial …

The Heart Of Equal Protection: Education And Race, Sharon E. Rush

UF Law Faculty Publications

Brown vs. Board of Education established more than the unconstitutionality of the separate but equal doctrine in public education. Brown also gave the importance of education a constitutional dimension. Involuntary racial segregation creates a stigma wherever it exists which indisputably affects all children's self-esteem by possibly undermining that of children of color and by artificially inflating that of White children. Unfortunately, more recent cases that raise questions about the right to a public education seem less willing to acknowledge the importance of education and the importance of integration in public education. Since Brown, the Court has held repeatedly that …

Assessing The Efficacy Of School Desegregation, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Forty Years In The Desert, Paul F. Campos

Publications

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

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

Cornell Law Faculty Publications

No abstract provided.

After The Desegregation Era: The Legal Dilemma Posed By Race And Education, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

A Reply To Cummings: Are The Racial Realists Forced To Embrace The Legal Rationale Of The Liberal And Integrationist Structures?, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Recent Developments In The Termination Of School Desegregation Decrees, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

Termination Of Public School Desegregation: Determination Of Unitary Status Based On The Elimination Of Invidious Value Inculcation, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.