Law Commons^™

University Endowments: A (Surprisingly) Elusive Concept, Frances R. Hill

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Even as certain policy makers press for mandatory payouts from endowments, the concept of an endowment remains surprisingly elusive. In the absence of either operational concepts of endowments or well-established metrics for identifying and measuring endowments, public policy discussions proceed with an implicit model of an endowment as "money in waiting" that is not currently in use for exempt educational purposes. This Article suggests that endowments, however conceptualized or measured, are better understood as "money in use" even though it is not being distributed. It argues that most endowment money is currently in use for at least two purposes. The …

Promoting The Rule Of Law: Cooperation And Competition In The Eu-Us Relationship, Ronald A. Brand

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Both the United States and the European Union fund programs designed to develop the rule of law in transition countries. Despite significant expenditures in this area, however, neither has developed either a clear definition of what is meant by the rule of law or a catalogue of programs that can result in coordination of rule of law efforts. This article is the result of a presentation at a May 2010 policy conference at the University of Pittsburgh School of Law, at which U.S. and EU government officials, scholars, and practitioners discussed the concept of rule of law and efforts to …

The Invisible Pregnant Athlete And The Promise Of Title Ix, Deborah Brake

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The question of how law should respond to women who become pregnant, and whether to specially accommodate pregnancy or analogize it to other conditions, features prominently in virtually every area of sex equality law. In debates over women's equality in the workplace, for example, it has been the defining issue for the development of and debate over various models of equality in feminist legal theory. Until recently, however, the issue has been all but absent in debates and discussion about Title IX and its promise of sex equality in sports. This changed suddenly in 2007, when ESPN televised a program …

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams

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This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to express their …

On Logic In The Law: Something, But Not All, Susan Haack

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In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the "logical theology" of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of "axioms and corollaries"; and this element of truth is not obviated by the more powerful logical techniques that are now available.

Breaking Free Of Chevron's Constraints: Zuni Public School District No. 89 V. U.S. Department Of Education, Osamudia R. James

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No abstract provided.

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

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This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow

Articles

In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …

Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker

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When asked to provide commentary on another scholar's reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation's law school classrooms. Second, for the same …

A Question Of Fairness: The Proper Standard Of Review Of School Board Just And Reasonable Cause Determinations In Teacher Termination Proceedings In Idaho, John E. Rumel

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No abstract provided.

From Agency To Zattiero - The Effect Of School Board Policy, John E. Rumel

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No abstract provided.

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah Brake

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This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term "leveling down" refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that …

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

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Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.

An Autopsy Of The Structural Reform Injunction: Oops ... It's Still Moving, Myriam E. Gilles

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No abstract provided.

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

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Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …

Equal Opportunity, Individual Liberty And Meritocracy In Education: Reinforcing Structures Of Privilege And Inequality, Christian Sundquist

Articles

The paradigm of equal opportunity inevitably seeks to reproduce and maintain structures of class and racial privilege. The deficit story of equal opportunity is as follows: equal opportunity is a truly objective, neutral, and fair method to allocate educational, employment, and political resources to members of society, without regard to race, class, gender or ethnicity. The ideal of equality assumes the possibility of an objective measure of merit under which individuals' free choices and preferences may be evaluated. Accordingly, through the creation of a baseline that presupposes the inherent sameness of all people and disregards systemic discrimination as a fallacy, …

The Law Of White Spaces: Race, Culture, And Legal Education, Peter Goodrich, Linda G. Mills

Articles

The scene, drawn from memory, is a first-year law school classroom. It is the early 1980s and the class is on civil procedure. The teacher is a white woman. She is nervous, and the class is dominated by students who provide standard right answers to formulaic law school questions. Other points of view, particularly those of a critical or feminist nature, are either passed over quickly or ignored. Questions of color are never mentioned. More than that, the teacher never calls on any African-American students. Students of color are either ignored completely or told, when they have questions, “We are …

Latcrit At Five: Institutionalizing A Postsubordination Future, Elizabeth M. Iglesias, Francisco Valdes

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No abstract provided.

The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake

Articles

Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. …

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow

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In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which …

The Cruelest Of The Gender Police: Student-To-Student Sexual Harassment And Anti-Gay Peer Harassment Under Title Ix, Deborah L. Brake

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Title IX, like other sex discrimination laws, addresses discrimination that occurs because of an individual’s sex. Courts interpreting Title IX, like those interpreting Title VII of the Civil Rights Act of 1964, have struggled to demarcate a line separating discrimination because of sex from discrimination because of sexual orientation. This article constructs an argument for viewing anti-gay discrimination, and in particular anti-gay harassment between students, as a form of sex discrimination under Title IX. The article first explores why school inaction in the face of sexual harassment discriminates on the basis of sex. Although sex discrimination law generally has long …

Yearning For Lake Wobegon: The Quest For The Best Test At The Expense Of The Best Education, Lisa Kelly

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This article first will outline the various tests or assessments. Next, recent federal and state mandates for standardized testing of elementary school children will be examined. Then, the educational literature will be reviewed to expose the dangers of testing, particularly in the early grades. Finally, I will urge that the Clinton administration, Congress, and the states step back from this manner of securing educational adequacy. These governmental policies are rooted in the stated intention of guaranteeing that all schools are doing right by all of the children. However, early testing fosters the opposite result-educational inequity through tracking, retention, and the …

The Liberty Dimension Of Historic And Contemporary Segregation, James W. Nickel

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No abstract provided.

What Juvenile Court Abolitionists Can Learn From The Failures Of Sentencing Reform, David Yellen

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No abstract provided.

Comment On Preliminary Report On Freedom Of Expression And Campus Harassment Codes, Terrance Sandalow

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Campus harassment codes pose an unprecedented problem for the AAUP, not only because the issues of academic freedom they raise are novel, but also because the academic community is itself deeply divided over those issues. Historically, the major assaults upon academic freedom have come from outside the academy--from politicians, trustees, and donors who have sought to limit inquiry and restrict the expression of unpopular views. Ideas about academic freedom have been shaped in the course of repelling these assaults and in constructing barricades that will safeguard the freedoms to teach and to learn that are at the center of the …

Academic Freedom And Academic Values In Sponsored Research, Rebecca S. Eisenberg

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In this Article I examine the traditional American conception of academic freedom and analyze its implications for universities formulating policies on the acceptance of sponsored research. I begin by reviewing the basic policy statements of the American Association of University Professors (AAUP) on academic freedom to identify both the academic values implicit in those statements and the assumptions about institutional relationships and individual incentives underlying their prescriptions for advancing those values. I then evaluate the validity of those underlying assumptions in contemporary sponsored research and argue that academic freedom as traditionally conceived might no longer effectively advance academic values in …

Defining The Terms Of Academic Freedom: A Reply To Professor Rabban, Rebecca S. Eisenberg

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I suspect Professor Rabban is right in saying that we have more than a semantic dispute. But it is difficult to identify our areas of substantive disagreement with any precision because of a major difference in the meanings that each of us ascribes to certain key words and phrases. The essence of my argument is as follows: What I call "the traditional American conception of academic freedom" justifies professional autonomy for faculty members as a means of furthering certain academic values. But the mechanism of faculty autonomy fails to protect these traditional academic values in the contemporary context of externally …

Teaching Philosophy Of Law In Law Schools: Some Cautionary Remarks, Patricia D. White

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No abstract provided.

The Funding Of Children's Educational Costs, Douglas A. Kahn

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A plan for reduction of educational costs should take federal transfer taxes into account. The method chosen for reducing income tax liability usually will involve making gifts. To the extent that it is convenient to do so, the transfer tax consequences of making such gifts should be minimized. This article will examine the estate and gift tax consequences of the income tax reduction arrangements described herein and will consider means of structuring the transactions so as to minimize those consequences.