Law Commons^™

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

All Faculty Scholarship

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

A Quarter Century Of Challenges And Progress In Education, And An Agenda For The Next Quarter Century, Albert H. Kauffman

Faculty Articles

As a native Texan who attended intentionally segregated Texas public schools, then an effectively segregated Texas public law school, litigated many cases against discrimination in Texas education, and now teaches Texas education law, I have what I think to be informed opinions on where we have been, where we are going, and what we should do next. I will briefly describe our sad history of discrimination in segregation, school finance, testing, higher education, and lack of responsiveness to newer issues in education at all levels. I will then summarize some of our ongoing challenges and some possible approaches that I …

Title Ix’S Unrealized Potential To Prevent Sexual Violence, Katharine B. Silbaugh

Faculty Scholarship

The mandate of Title IX is equality in educational opportunities. If educational institutions could prevent sexual assaults from occurring, they would more fully ensure that students are not limited in their ability to benefit from the school’s educational programs. However, Title IX administration on college campuses still focuses far more on post-assault infrastructure than on assault prevention.

Yet with the ever-increasing particularity of the assault response requirements emanating from the Department of Education (“DOE”)2 and courts, Title IX jurisprudence has strayed too far from this basic purpose: to ensure that students in federally funding schools are not denied or limited …

Title Ix And The Challenges Of Educating For Equality, Linda C. Mcclain

Faculty Scholarship

Educating for equality to foster practicing equality must be a vital task for the next fifty years of Title IX. It is also a task that fits into the mission and expertise of schools as educational institutions. I use “educating for equality” as shorthand for the role of schools in preparing children, adolescents, and college students to participate in and build a world in which—to echo Title IX’s “37 words that changed everything”¹—“No person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to …

Brief Of Legal Scholars Defending Race-Conscious Admissions As Amici Curiae In Support Of Respondents, Sffa V. Harvard (20-1199) And Sffa V. University Of North Carolina At Chapel Hill (21-707), Jonathan Feingold, Vinay Harpalani

Faculty Scholarship

Legal Scholars Defending Race-Conscious Admissions uplift two underappreciated dynamics in the subject litigation challenging race-conscious admissions at Harvard and UNC:

1) Petitioner Students for Fair Admissions (“SFFA”) conflates two discrete claims against Harvard: (a) an intentional discrimination (or “negative action”) claim alleging that anti-Asian bias benefits white applicants and (b) a standard affirmative action challenge. SFFA blurs these claims to scapegoat and stigmatize affirmative action as a practice that pits Asian Americans against other students of color. Yet, SFFA belies its own narrative. According to SFFA’s own expert, anti-Asian bias—to the extent it exists—is caused by "colorblind" components of the …

The Assault On Critical Race Theory As Pretext For Populist Backlash On Higher Education, Danielle M. Conway

Faculty Scholarly Works

The rightwing is carrying out its most recent effort to install an authoritarian regime in America, which has been boosted by Donald Trump’s white supremacist rhetoric and actions before, during, and after his four years holding the Office of the President of the United States. Resolute in the effort to destabilize American Democracy by forcing on to the populist, among other messages, “The Big Lie,” the rightwing is committed to a coordinated strategy of attacking and delegitimizing democratic institutions for the purpose of retaining economic and political power.

The attack on Critical Race Theory (“CRT”) is one element of the …

Eyes Wide Shut: Using Accreditation Regulation To Address The “Pass-The-Harasser” Problem In Higher Education, Susan Saab Fortney, Theresa Morris

Faculty Scholarship

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when hiring faculty and administrators with little or no scrutiny related to their past misconduct. Critics use the term “pass the harasser” or more pejoratively, “pass the trash” to capture the role that institutions play in allowing individuals to change institutions without the new employer learning …

Special Solicitude: Religious Freedom At America’S Public Universities, William E. Thro

Office of Legal Counsel Academic Publications

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression …

Inside The Master's Gates: Resources And Tools To Dismantle Racism And Sexism In Higher Education, Susan Ayres

Faculty Scholarship

The spring of 2020 saw waves of protest as police killed people of color. After George Floyd’s death, protests erupted in over 140 cities. The systemic racism exhibited by these killings has been uncontrollable, hopeless, and endless. Our country is facing a national crisis. In response to the police killings, businesses, schools, and communities held diversity workshops across the nation, and businesses and organizations posted antiracism statements. Legislators and City Councils introduced bills and orders to defund police and to limit qualified immunity. As schools prepared for the fall semester, teachers considered ways to incorporate antiracism materials into the curriculum. …

Disability Discrimination In Higher Education: The Enabling Spirit Of American Disability Legislation In Conflict With Judicial Interpretation, Travis Murray

Student Scholarship

Disabled individuals have historically been treated as second-class citizens in the United States. While improvements have certainly been made over time, disabled individuals still face significant barriers to enjoying full and equal participation in society. Higher education is one aspect of American society still lacking proportional representation of the disabled community. To try and understand why disabled Americans fail to thrive in higher education at rates approaching those of non-disabled individuals, this paper will examine the following: how the history of disability discrimination in America influenced passage of powerful anti-discrimination legislation; how American courts have generally interpreted that legislation to …

Redesigning Education Finance: How Student Loans Outgrew The “Debt” Paradigm, John R. Brooks, Adam J. Levitin

Georgetown Law Faculty Publications and Other Works

This Article argues that the student loan crisis is due not to the scale of student loan debt, but to the federal education finance system’s failure to utilize its existing mechanisms for progressive, income-based payments and debt cancellation. These mechanisms can make investment in higher education affordable to both individuals and the government, but they have not been fully utilized because of the mismatch between the current system’s economic reality and its legal, financial, and institutional apparatus.

The current economic structure of federal student loans does not resemble a true credit product, but a government grant program coupled with a …

Unsafe At Any Campus: Don't Let Colleges Become The Next Cruise Ships, Nursing Homes, And Food Processing Plants, Peter H. Huang, Debra S. Austin

Publications

The decision to educate our students via in-person or online learning environments while COVID-19 is unrestrained is a false choice, when the clear path to achieve our chief objective safely, the education of our students, can be done online. Our decision-making should be guided by the overriding principle that people matter more than money. We recognize that lost tuition revenue if students delay or defer education is an institutional concern, but we posit that many students and parents would prefer a safer online alternative to riskier in-person options, especially as we get closer to fall, and American death tolls rise. …

Tuition As A Fraudulent Transfer, David G. Carlson

Articles

Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

Scholarly Works

In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

Federal Financing Of Higher Education At A Crossroads: The Evolution Of The Student Loan Debt Crisis And The Reauthorization Of The Higher Education Act Of 1965, Camilla E. Watson

Scholarly Works

Currently, there are 44.2 million Americans holding student loan debt collectively totaling $1.5 trillion. This massive debt has a profound effect, not only on the lives of the debtors, but also on the national economy because it prevents the debtors from buying homes and cars and creating new businesses. This debt is also speculated to be a likely trigger for the next housing bubble because student loans, like the subprime mortgage loans underlying the 2008 financial crisis, are securitized and sold to investors. But many of those with student loans struggle to find jobs that will enable them to pay …

The People V. Their Universities: How Popular Discontent Is Reshaping Higher Education Law, Ben L. Trachtenberg

Faculty Publications

Surveys taken since 2015 reveal that Americans exhibit stark partisan divisions in their opinions about colleges and universities, with recent shifts in attitudes driving changes to higher education law. In recent years, Democrats have become slightly more positive about higher education. Concurrently, Republicans have become extremely more negative, and a majority of Republicans now tells pollsters that colleges and universities have an overall negative effect on the country.

Particularly in legislative chambers controlled by Republicans, public and elite dissatisfaction with higher education has led to legal interventions into the governance of universities, with new laws related to faculty tenure, the …

The Economics Of American Higher Education In The New Gilded Age, Paul Campos

Publications

No abstract provided.

Barriers To Higher Education: Underrepresented Minorities' Access To Uci, Kimberly Dennin

Pell Scholars and Senior Theses

Ever since the removal of Affirmative Action in California from Proposition 209, the UC system has struggled with increasing the enrollment numbers of underrepresented minorities on their campuses. In response to this, many of the UC schools are adopting different policies to help counteract the negative effects of Proposition 209. This paper examines the effects of Proposition 209 on the underrepresented minority population in the UC system, specifically focusing on the University of California, Irvine (UCI). The areas of focus for addressing the issues of Proposition 209 at UCI are outreach programs, admissions policies, and recruitment programs. This paper examines …

The Real Danger Of Guns In Schools, Sonja R. West

Popular Media

This article that first appeared at Slate.com on March 22, 2016, looks at Georgia's "Campus Carry" Legislation. This legislation permits "any [firearm] license holder when he or she is in or on any building or real property owned by or leased to any public technical school, vocational school, college, university, or other institution of postsecondary education."

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

Scholarly Works

Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

Due Process In Public University Discipline Cases, Marie T. Reilly

Journal Articles

No abstract provided.

Diversity Without Integration, Kevin Woodson

Law Faculty Publications

The de facto racial segregation pervasive at colleges and universities across the country undermines a necessary precondition for the diversity benefits embraced by the Court in Grutter — the requirement that students partake in high-quality interracial interactions and social relationships with one another. This disjuncture between Grutter’s vision of universities as sites of robust cross-racial exchange and the reality of racial separation should be of great concern, not just because of its potential constitutional implications for affirmative action but also because it reifies racial hierarchy and reinforces inequality. Drawing from an extensive body of social science research, this article explains …

The Trouble With 'Bureaucracy', Deborah L. Brake

Articles

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing …

Toward A Civilized System Of Justice: Reconceptualizing The Response To Sexual Violence In Higher Education, Hannah Brenner, Kathleen Darcy

Faculty Scholarship

The reporting, investigation, and prevention of sexual violence in settings that are closed off from the greater community and subject to their own laws, rules, norms and biases present special challenges for survivors of sexual violence. This essay builds on our existing scholarship that explores the pervasive problem and exceedingly high incidence of sexual violence perpetrated against women in closed institutional systems like prison, the military, and immigration detention centers. Survivors in these contexts are routinely denied access to justice internally and from the external criminal justice system; they also face major limitations (imposed by both federal law and Supreme …

What Once Was Lost Must Now Be Found: Rediscovering An Affirmative Action Jurisprudence Informed By The Reality Of Race In America, Lee C. Bollinger

Faculty Scholarship

This academic year has seen college and university students across America calling on their institutions to do more to create campus cultures supportive of African American students and other underrepresented minorities. There have been demands to increase faculty and student diversity, change curricular requirements, and adopt mandatory cultural sensitivity trainings. There have been efforts to rename buildings, remove images, and abandon symbols associating schools with major historic figures who were also proponents of slavery, segregation, or other forms of racism. As in all tumultuous periods for higher education, these events have provoked useful discussions about fundamental principles and brought to …

Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg

Faculty Scholarship

This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to education, including nonconsensual sexual contact; and 3) the pedagogical challenges of developing trainings that are engaging and effective. Taking these three factors into account, we can see that while federal Title IX intervention has had a profound effect, it is also important not to …

Bankruptcy And Education, Keith Sharfman

Faculty Publications

(Excerpt)

Bankruptcy law interacts with education law in a number of respects. A bankrupt educational institution loses access to student financial aid, and its accreditation status is excluded from the bankruptcy estate. Actions by accreditation agencies against bankrupt educational institutions are not subject to the automatic stay. And absent a showing of undue hardship, student loans are not dischargeable in bankruptcy.

The exceptional treatment of educational institutions and their students in bankruptcy reflects a fundamental tension between the goals of bankruptcy law on the one hand and education policy on the other. While bankruptcy law generally seeks to maximize value …

Making State Merit Scholarship Programs More Equitable And Less Vulnerable, Aaron N. Taylor

All Faculty Scholarship

Since the 1993 arrival of Georgia’s Helping Outstanding Pupils Educationally (HOPE) Program, meritscholarships have become popular tools for states seeking to maximize human capital within their borders. However, research has concluded both that the bulk of merit scholarships goes to students with the least financial need and the popularity of these programs has led to a de-emphasis on need-based scholarshipfunding in some states. These trends are even more worrisome when these programs are funded by lottery revenue, as is the case with HOPE. Lotteries are inherently regressive because the people who play (and pay related taxes) tend to be poor …

Reimagining Merit As Achievement, Aaron N. Taylor

All Faculty Scholarship

Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …

Law Schools, Leadership, And Change, Susan P. Sturm

Faculty Scholarship

Law schools train many of the nation’s leaders. As Professor Fred Rodell observed, “it is the lawyers who run our civilization for us – our governments, our business, our private lives.” The legal profession was already closely linked to leadership at the founding of the country, when lawyers constituted almost half of the signers of the Declaration of Independence and more than half of the members of the Constitutional Convention. Lawyers now bear major responsibility for leading the institutions that structure the governance, education, and day-to-day lives of the polity. Ten percent of the CEOs of the top fifty companies …