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Articles 31 - 60 of 193
Full-Text Articles in Law
Deficit Frame Dangers, Jonathan Feingold
Deficit Frame Dangers, Jonathan Feingold
Faculty Scholarship
Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice.
Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a “deficit frame.” Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. …
Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell
Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell
Faculty Scholarship
No abstract provided.
Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis
Faculty Scholarship
Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in …
Special Education By Zip Code: Creating Equitable Child Find Policies, Crystal Grant
Special Education By Zip Code: Creating Equitable Child Find Policies, Crystal Grant
Faculty Scholarship
It is estimated that more than 1.3 million youth in the United States have a disability. One in four American adults have a disability that impacts major life activities. With disability rates this high, our nation must prioritize efforts to ensure that all children with disabilities and in need of special education are identified and receive the support they need in school. Congress, through the Individuals with Disabilities Education Act (IDEA), mandated that all public schools locate, identify and evaluate all students suspected of having a disability. The special education community refers to this affirmative duty as “child find.” Unfortunately, …
Special Education Disparities Are Social Determinants Of Health: A Role For Medical-Legal Partnerships, Karen Bonuck, Leah Hill
Special Education Disparities Are Social Determinants Of Health: A Role For Medical-Legal Partnerships, Karen Bonuck, Leah Hill
Faculty Scholarship
Problem: Education is a key social determinant of health. The federal Individuals with Disabilities Education Act (IDEA) purportedly affords children the right to a free and appropriate education. Yet, racial, ethnic, and economic disparities exist regarding appropriate identification and classification of children with needs for special education, and access to services.
Purpose: This article first highlights gaps and disparities in special educational services, and their structural linkage to poverty. The second section describe the first years of a medical–legal collaboration between a University Center of Excellence in Developmental Disabilities (UCEDD) and Fordham University, focused on special education.
Key Points: The …
The 'Other' Market, Cody Jacobs
The 'Other' Market, Cody Jacobs
Faculty Scholarship
The hiring market for tenure-track non–legal writing positions is a world unto itself with its own lingo (i.e., “meat market” and “FAR form”), its own unwritten rules (i.e., “Do not have two first-year courses in your preferred teaching package.”), and carefully calibrated expectations for candidates and schools with respect to the process and timing of hiring. These norms and expectations are disseminated to the participants in this market through a relatively well-established set of feeder fellowships, visiting assistant professor programs, elite law schools, blogs, and academic literature on the subject.
But there is another market that goes on every year …
Covid-19'S Impact On Students With Disabilities In Under-Resourced School Districts, Crystal Grant
Covid-19'S Impact On Students With Disabilities In Under-Resourced School Districts, Crystal Grant
Faculty Scholarship
This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. These solutions include an immediate advancement of funds to aid states …
Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson
Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson
Faculty Scholarship
Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by …
Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman
Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman
Faculty Scholarship
We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …
The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson
The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson
Faculty Scholarship
The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …
Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short
Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short
Faculty Scholarship
merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a …
Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran
Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran
Faculty Scholarship
The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias
Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias
Faculty Scholarship
Thank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to …
Tenure Matters: The Anatomy Of Tenure And Academic Survival In American Legal Education, Stephen J. Leacock
Tenure Matters: The Anatomy Of Tenure And Academic Survival In American Legal Education, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney
Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney
Faculty Scholarship
The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, …
Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose
Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose
Faculty Scholarship
Article Extract:
I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising …
Taming Title Ix Tensions, Naomi M. Mann
Taming Title Ix Tensions, Naomi M. Mann
Faculty Scholarship
The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through …
Higher Education As A Human Right, Heidi Gilchrist
Higher Education As A Human Right, Heidi Gilchrist
Faculty Scholarship
No abstract provided.
School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert
School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert
Faculty Scholarship
More than ten years have passed since the United States Supreme Court last addressed school desegregation. In its abbreviated tenure in the decades following Brown v. Board of Education, school desegregation was successful in many respects. Longstanding policies of state-sponsored educational apartheid eventually ended. A great many school buildings became more diverse. Countless students of color gained access to improved academic opportunities and better life outcomes. A consensus formed around the positive impacts that desegregation could have on both students of color and white students. When courts retreated from upholding desegregation policies, many communities developed their own voluntary plans, some …
Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez
Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez
Faculty Scholarship
Panel moderated by Professor Olatunde Johnson, featuring Professors Monica Bell, Tanya K. Hernández, Solangel Maldonado, and Chantal Thomas. Introduced by Elise Lopez.
Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins
Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins
Faculty Scholarship
No abstract provided.
A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner
A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner
Faculty Scholarship
Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …
Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg
Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg
Faculty Scholarship
“If you’re afraid to offend, you can’t be honest.”
“If you offend me, I can’t hear what you’re trying to tell me.”
—overheard on campus
The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.
Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …
Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis
Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis
Faculty Scholarship
As a matter of civil rights, Title IX mandates that federally funded educational institutions address reports of sexual assault. Often disciplined-student plaintiffs argue unsuccessfully that the college or university’s decision to discipline them is tainted by “reverse” sex discrimination. This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. It provides a historical context for Title IX’s application to sexual assault on campuses and the requirements the law imposes on the educational institutions. Next, it describes the role Title IX plays in disciplined-student …
Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Elizabeth R. Cruikshank, Christina C. Ma
Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Elizabeth R. Cruikshank, Christina C. Ma
Faculty Scholarship
Entrenched bureaucracies and special-interest politics hamper public education in the United States. In response, school districts and states have recently adopted or promoted reforms designed to release schools from bureaucratic control and empower them to meet strengthened outcome standards. Despite promising results, the reforms have been widely criticized, including by the educationally disadvantaged families they most appear to help.
To explain this paradox, this Article first considers the governance alternatives to bureaucracy that the education reforms adopt. It concludes that the reforms do not adopt the most commonly cited alternatives to bureaucracy — marketization, managerialism, or professionalism/craft — and that …
Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao
Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao
Faculty Scholarship
No abstract provided.
City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran
City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran
Faculty Scholarship
When we think about the democratic promise of higher education, we often think of public universities. Consider, for example, the civic-minded reflections of Gordon Davies, the former Chancellor of the University of Virginia, who concluded in 1997 that “[e]ducation is not a trivial business, a private good, or a discretionary expenditure. It is a deeply ethical undertaking at which we must succeed if we are to survive as a free people.” This lofty vision has since been undermined by persistent cuts in funding for state universities across the nation. In 2007, James Duderstadt, the former president of the University of …
Paying For Attendance: Using Incentives To Combat Chronic Absenteeism, Madeline H. Meth
Paying For Attendance: Using Incentives To Combat Chronic Absenteeism, Madeline H. Meth
Faculty Scholarship
Students with poor attendance miss opportunities to learn social and academic skills.' They perform worse on achievement tests. 2 They are also less likely to graduate.3 A student who misses school in as early as the first grade is significantly more likely to eventually drop out of high school.4 Individuals who drop out see a significant loss in earnings and are more likely to be jobless; women who drop out make about 60% of what female high-school graduates earn, and men who do not graduate lose approximately $9,564 in annual wages. Because high-school dropouts earn less than those …
The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan
The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan
Faculty Scholarship
In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …