Law Commons^™

A Fresh Start: The Evolving Use Of Juvenile Records In College Admissions, Eve Rips

University of Michigan Journal of Law Reform

Questions about criminal and juvenile records in the college application process are common and frequently fail to account for the unique characteristics of juvenile justice systems. The ways in which colleges and universities ask about juvenile records often encourage applicants to disclose information in spite of statutory protections. These questions fly in the face of the public policy underlying a range of legal safeguards that are intended to help individuals with records from juvenile systems in moving forward and receiving a second chance.

In recent years, a series of legislative and institutional changes have begun to restrict how colleges and …

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

Post-Accountability Accountability, Nicole Stelle Garnett

University of Michigan Journal of Law Reform

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of …

Removing Camouflaged Barriers To Equality: Overcoming Systemic Sexual Assault And Harassment At The Military Academies, Rebecca Weiant

Michigan Journal of Gender & Law

The Education Amendments of 1972 introduced requirements to protect female students from discriminatory policies at post-secondary institutions. A portion of those amendments, commonly known as Title IX, require that no students be subjected to discrimination based on their sex by any educational institution or activity receiving federal financial assistance. An exemption under § 1681(a)(4), however, explicitly prohibits application of Title IX to any educational institution whose primary purpose is to train individuals for military service or the merchant marine. Although those students are still subject to stringent conduct standards, the service academies themselves are tethered to sex discrimination policies only …

Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten

Michigan Law Review Online

The story begins with threatening letters. In October 2014, the U.S. Department of Education reminded Colorado’s chief state school officer that the department “ha[d], in fact, withheld Title I, Part A administrative funds . . . from a number of States for failure to comply with the assessment requirements” under the Elementary and Secondary Education Act. Given the occasion, the department implied, it wouldn’t hesitate to be ruthless.

Colorado could be forgiven for assuming it was authorized to craft its own policies in this arena; according to the Wall Street Journal, the Every Student Succeeds Act (ESSA) represented “the …

Mainstreaming Equality In Federal Budgeting: Addressing Educational Inequities With Regard To The States, Elizabeth K. Hinson

Michigan Journal of Race and Law

Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme …

Rethinking Special Education's "Least Restrictive Environment" Requirement, Cari Carson

Michigan Law Review

The federal Individuals with Disabilities Education Act promotes the education of students with disabilities together with their nondisabled peers, requiring education in the “least restrictive environment” (“LRE”). This requirement has long been subject to competing interpretations. This Note contends that the dominant interpretation—requiring education in the least restrictive environment available—is deficient and allows students to be placed in unnecessarily restrictive settings. Drawing from child mental health law, this Note proposes an alternative LRE approach that requires education in the least restrictive environment needed and argues that this alternative approach is a better reading of the law.

Title Ix And Social Media: Going Beyond The Law, Emily Suran

Michigan Journal of Gender & Law

The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it …

Restructuring Local School Wellness Policies: Amending The Kids Act To Fight Childhood Obesity, Rebecca Edwalds

University of Michigan Journal of Law Reform

Childhood obesity is a major problem plaguing the United States. Over one-third of children are overweight, and there is little indication that this trend will reverse in the near future. The federal government has attempted to combat childhood obesity through the National School Lunch Act, which regulates the quality of foods federally subsidized schools may serve to children, and provides broad goals for physical activity. These basic goals leave extensive room for states to implement different standards, and they are not sufficient to effectively confront the childhood obesity problem. This Note proposes amendments to the National School Lunch Act that …

Special Kids, Special Parents, Special Education, Karen Syma Czapanskiy

University of Michigan Journal of Law Reform

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a “free appropriate public education,” or FAPE. This Article argues that the promise of the IDEA cannot be realized unless more attention is paid to the child’s parents. Under the IDEA, as in life, the intermediary between the child and …

It's Time To Start Showing A Little Restraint: In Search Of A Compromise On Federal Seclusion And Restraint Legislation, Cali Cope-Kasten

University of Michigan Journal of Law Reform

In 2009, the United States House of Representatives heard testimony that hundreds of students had been injured in schools by teachers secluding or physically restraining them. Congress had never legislated on seclusion and restraint, but the alarming allegations of student injuries and deaths prompted many parents to demand a ban on the use of the techniques in schools. In the continuing debate, school officials have protested that seclusion and restraint are important tools for teachers to protect their classrooms from out-of-control students. Torn between these two extreme positions, Congress has twice attempted — but failed — to pass federal legislation …

Put The Town On Notice: School District Liability And Lgbt Bullying Notification Laws, Yariv Pierce

University of Michigan Journal of Law Reform

Congress could mitigate the problem of lesbian, gay, bisexual, and transgender (LGBT) student bullying by requiring that teachers and school officials report all bullying incidents to their school district administrators. Many school districts are not aware of the prevalence of LGBT bullying and the extent to which each school protects, or fails to protect, its LGBT students compared to other harassed students. LGBT students often encounter difficulty demonstrating that their school district has a policy or custom of deliberate indifference toward their equal treatment when a school does not equally protect an LGBT student from peer-to-peer bullying because of the …

The Future Of School Integration: Socioeconomic Diversity As An Education Reform Strategy, Edited By Richard D. Kahlenberg (Century Foundation 2012), 397 Pages, Eloise Pasachoff

University of Michigan Journal of Law Reform Caveat

The last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes. Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines. Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs. The message of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is …

Race, Educational Loans & Bankruptcy, Abbye Atkinson

Michigan Journal of Race and Law

This Article reports new data from the 2007 Consumer Bankruptcy Project revealing that college graduates and specifically White graduates are less likely to file for bankruptcy than their counterparts without a college degree. Although these observations suggest that a college degree helps graduates to weather the setbacks that sometimes lead to financial hardship as measured by bankruptcy, they also indicate that a college degree may not help everyone equally. African American college graduates are equally likely to file for bankruptcy as African Americans without a college degree. Thus, a college education may not confer the same protective benefit against financial …

Crisis On Campus: Student Access To Health Care, Bryan A. Liang

University of Michigan Journal of Law Reform

College-aged adults are an overrepresented group in the uninsured population of the United States, and traditionally underserved minorities are disproportionately affected. Students with private health insurance are often functionally uninsured as well, since most schools refuse to accept this traditionally elite calling card on campus. Consequently, the large uninsured and functionally uninsured populations often rely on school-sponsored health insurance plans for access to care. These plans have uneven coverage, limited benefits, exclusions and high co-pays and deductibles, and provide little health care security for their beneficiaries. Further, schools and insurance companies have profited substantially from these student plans, raising the …

Unemployment Compensation For Employees Of Educational Institutions: How State Courts Have Created Variations On Federally Mandated Statutory Language, Maribeth Wilt-Seibert

University of Michigan Journal of Law Reform

Over the past sixty years, Congress has enacted a system of unemployment insurance for workers who have become unemployed through no fault of their own. While the Social Security Act of 1935 created much of the statutory framework for this system of insurance, Congress did not include employees of educational institutions within its system of unemployment insurance until 1970, when it amended the Federal Unemployment Tax Act of 1954 (FUTA). Since Congress enacted those amendments, each of the fifty states has passed legislation that substantially conforms to the FUTA amendments. Yet, despite the uniformity of state statutory language, state appellate …

School Finance Adequacy As Vertical Equity, Julie K. Underwood

University of Michigan Journal of Law Reform

In this Article, Dean Underwood explains that school finance cases can be divided into three waves of reform. The first wave involved efforts to use the Federal Equal Protection Clause to overturn financing systems. Litigants in the second wave turned to state equal protection and due process clauses. Finally, the third wave involved the utilization of education clauses in state constitutions as the predominant litigation vehicle. These three waves embody two primary approaches to school finance litigation. The first approach involves a challenge to the adequacy of a state's funding system under either the state or federal equal protection clause, …

Establishing Education Program Inadequacy: The Alabama Example, Martha I. Morgan, Adam S. Cohen, Helen Hershkoff

University of Michigan Journal of Law Reform

The authors draw on their experience as attorneys for a statewide class of plaintiff school children in the liability phase of ongoing public education reform litigation in Alabama to demonstrate the availability of state and nationally recognized standards concerning educational resources (inputs) and results (outputs) that can serve as evidentiary tools for assessing and for establishing a state public education system's failure to satisfy constitutional mandates of educational adequacy. The Article discusses the usefulness and limitations of using such standards as a starting point in a court's constitutional analysis. It suggests an integrated approach that links input and output standards …

Accelerated Education As A Remedy For High-Poverty Schools, William H. Clune

University of Michigan Journal of Law Reform

High-poverty schools, and the students who attend them, have historically faced substantial challenges in providing and receiving, adequate education. Despite some relief from the courts, school finance remedies that require the redistribution of monetary aid to low-wealth districts have encountered strong political opposition. In this Article, Professor Clune makes a renewed claim for accelerated education as the primary focus of adequacy litigation in school reform cases. He describes the nation's educational condition, in which there exists a disturbing correlation between poverty and low educational outcomes. He then drafts a vision of a comprehensive, school reform remedy, one that emphasizes institutional …

Achieving Equity And Excellence In Kentucky Education, C. Scott Trimble, Andrew C. Forsaith

University of Michigan Journal of Law Reform

In this Article, Trimble and Forsaith discuss the landmark Kentucky school finance case, Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989), and the school reform efforts it spawned. In Council for Better Education, the Kentucky Supreme Court held that the state had failed its duty under the state constitution to provide all students with an adequate education, which it defined in terms of seven categories of knowledge and skills students should acquire. The State General Assembly responded with the Kentucky Education Reform Act (KERA), which significantly boosted state funding as well as established an ambitious accountability system …

Oklahoma School Finance Litigation: Shifting From Equity To Adequacy, Mark S. Grossman

University of Michigan Journal of Law Reform

This Article traces the history of Oklahoma school finance litigation from the initial challenge based on funding inequity to a recent lawsuit founded on alleged constitutional inadequacies in the state system. Although the legal challenge based on funding inequity was unsuccessful in the courts, the pendency of the suit helped push the state legislature toward some reforms. The threat of a new lawsuit based on alleged inadequacies in the state school system, together with a serious funding shortfall, propelled a comprehensive education reform plan through the state legislature in 1990. The association of local school boards that led the equity …

The Individuals With Disabilities Education Act: A Parent's Perspective And Proposal For Change, Martin A. Kotler

University of Michigan Journal of Law Reform

For two years, beginning in the fall of 1991, I was involved in an ongoing legal battle with the Delaware County, Pennsylvania Intermediate Unit No. 25 regarding the "appropriateness" of preschool programming for my son. To a large degree, the following Article has its origin in that battle.

Nevertheless, the point of this Article is neither to get even for wrongs, real or imagined, nor to utilize these pages to supplement the already extensive briefs and formal arguments made in that case. Rather, I believe that my position as a law professor, lawyer, litigant, and parent of a disabled child …

Equity In Public Education: School-Finance Reform In Michigan, William S. Koski

University of Michigan Journal of Law Reform

This Note argues that the only adequate compromise between the pressure to limit taxes and the need to provide both educational quality and equity is to institute a form of full-state funded education. Part I of this Note briefly defines equity in public education and discusses the importance of increasing equity. Part II discusses other values and concerns that arise in the school-finance debate, such as liberty, local control, efficiency, and quality of education. Part III considers several fundamental school-finance alternatives. Part IV provides a historical overview of Michigan school finance reform and a description of the current State School …

Legislative Notes: The Education Of All Handicapped Children Act Of 1975, Donald W. Keim

University of Michigan Journal of Law Reform

Part I reviews the landmark judicial decisions which have established the right of handicapped children to participate in free, public education. The basic provisions of the Education of All Handicapped Children Act of 1975 are then presented in Part II. The funding provisions are discussed in Part III with particular emphasis upon the tension between the promise of federal largesse and the expense of compliance with statutory and judicial requirements. Part IV reviews prior efforts to obtain judicial recognition of a substantive right to an appropriate education and suggests some ways in which the 1975 Act may alter the framework …