Law Commons^™

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

Articles

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 …

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene

Michigan Journal of Gender & Law

The disparity between what the Constitution permits of public schools and what Title IX permits of private ones is unquestionably stark. This Article calls this disparity into question. First, it asks under what circumstances, if any, allowance for sex discrimination in athletics may be justified under constitutional standards. Then, it considers the practical relevance of the disparity between how a school may lawfully discriminate under Title IX and how it may do so under the Equal Protection Clause. Finally, it offers a prescription for bringing into balance the gender equity messages sent by Title IX and the Constitution.

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Publications

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

Articles

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.

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …

A Moving Violation? Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, L. Buckner Inniss

Publications

No abstract provided.

From Equity To Adequacy: The Legal Battle For Increased State Funding Of Poor School Districts In New York, Brian J. Nickerson, Gernard M. Deenihan

Fordham Urban Law Journal

This Article evaluates the influence of federal courts' school finance cases on the New York school finance groups' decision to litigate in the New York courts. It then analyzes the importance of other states' legal precedents in school finance cases as a factor influencing interest groups in New York to challenge the state's public education funding formulas. This Article discusses the progression of public elementary and secondary school funding formula litigation in New York, focusing on the legal arguments raised by various interest group-plaintiffs and tracing the development of those arguments to school finance cases in other states. The conclusion …

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

Washington and Lee Law Review

No abstract provided.

Postsecondary School Education Benefits For Undocumented Immigrants: Promises And Pitfalls, Victor C. Romero

Journal Articles

Should longtime undocumented immigrants have the same opportunity as lawful permanent residents and U.S. citizens to attend state colleges and universities? There are two typical justifications for denying them such opportunities. First, treating undocumented immigrants as in-state residents discriminates against U.S. citizen nonresidents of the state. Second, and more broadly, undocumented immigration should be discouraged as a policy matter, and therefore allowing undocumented immigrant children equal opportunities as legal residents condones and perhaps encourages "illegal" immigration. This essay responds to these two concerns by surveying state and federal solutions to this issue.

A General Theory Of Cultural Diversity, Steven A. Ramirez

Michigan Journal of Race and Law

This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited …

When The Classroom Speaks: A Public University's First Amendment Right To A Race-Conscious Admissions Policy, Alfred B. Gordon

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Revisiting Gay Rights Coalition Of Georgetown Law Center V. Georgetown University A Decade Later: Free Exercise Challenges And The Nondiscrimination Laws Protecting Homosexuals, Matthew J. Parlow

Matthew Parlow

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

Articles

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 …

Fighting Anti-Gay Abuse In Schools: The Opening Appellate Brief Of Plaintiff Jamie Nabozny In Nabozny V. Podlesny, Patricia M. Logue, David S. Buckel

Michigan Journal of Gender & Law

In Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), a case of first impression, the Seventh Circuit Court of Appeals recognized the constitutional right of a gay male public school student to equal protection from anti-gay harassment and assaults. The court held that Jamie Nabozny had stated equal protection claims against his school district and three school principals for gender and sexual orientation discrimination based on allegations that, because he is gay and a boy, defendants had failed to afford him the same kinds of protection given to other harassed students. At trial on remand a jury found …

The Constitutional Amendment By Missouri V. Jenkins, Laura S. Fitzgerald

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The "Constitutional" Assault On The Virginia Military Institute, Jon A. Soderberg

Washington and Lee Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Constitutional Law—Equal Protection And School Funding In Arkansas, Mark Allison

University of Arkansas at Little Rock Law Review

No abstract provided.

Kentucky Law Survey: Education: Teachers’ Rights, Keith Graham Hanley, Robert G. Schwemm

Law Faculty Scholarly Articles

Tenure occupies an important place in the mind of any new teacher. During the past survey year, the Kentucky courts have demonstrated that this status is not only important to teachers generally; it is essential to continued job security. The aegis of tenure provides not only the substance of teachers’ rights but also the procedure used to protect those rights.

Discharged teachers have alleged violations of the 14th amendment of the U.S. Constitution in both its equal protection and due process aspects and violations of the Kentucky constitution. However, in each instance the courts have summarily dismissed these claims, preferring …

Aliens And Equal Protection: Why Not The Right To Vote?, Gerald M. Rosberg

Michigan Law Review

A constitutional right of at least some aliens to vote does not seem to me at all unthinkable. Throughout much of the nineteenth century and part of the twentieth, aliens enjoyed the right to vote in a great many states. The states that extended the franchise to aliens plainly did not believe that they were acting under constitutional compulsion. But given our present understanding of the mission of the equal protection clause, much can now be said in defense of such a constitutional right. My purpose here is to outline the case that might be made for the right of …

Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt

Faculty Scholarship

Racial preferences for blacks generate ambivalence in those who care about racial equality and also believe that individuals should be judged "on their own merits." This ambivalence is reflected in divergent "equal protection" values, the value of eliminating barriers to equality imposed on minority groups and that of distributing the burdens and benefits of social life without reference to arbitrary distinctions. It is hardly surprising, therefore, that after Marco DeFunis, Jr. challenged the constitutionality of racial preferences for admission to a state law school, the Supreme Court's resolution of the issue was awaited with intense interest and some trepidation. For …

Constitutional Requirements For Standardized Ability Tests Used In Education, Lewis D. Beckwith

Vanderbilt Law Review

This Note examines the groundwork for possible legal remedies to correct the abuses of tests and testing procedures used by some educators. Because the standardized ability tests administered as prerequisites to college admission are perhaps the most significant obstacles to an individual's educational development, the discussion herein is directed primarily to them. This Note attempts to demonstrate that existing legal doctrines provide an adequate basis for challenging some of the standardized ability tests used in determining college entrance requirements as violations of equal protection and procedural due process. It also discusses the scope of a proper remedy for individuals aggrieved …

Post--Brown Private White Schools--An Imperfect Dualism, James E. Smith

Vanderbilt Law Review

Federal courts have endeavored to assure that private discrimination practiced by schools is truly private. In this endeavor, courts have enjoined any significant state involvement as violative of the equal protection clause. The courts have shown no inclination to prohibit the private discrimination itself, however, and it appears unlikely that courts in the near future will take the innovative step of barring discrimination practiced by private white academies.

De Facto School Segregation And The "State Action" Requirement: A Suggested New Approach, Dennis Powers

Indiana Law Journal

No abstract provided.

Wellsand V. Valparaiso Community School Corporation: Equal Protection For The Married Football Player, Randolph L. Seger

Indiana Law Journal

No abstract provided.

Restrictions On Student Voting: An Unconstitutional Anachronism?, W. Perry Bullard, James A. Rice

University of Michigan Journal of Law Reform

Using Michigan as a vehicle for analysis because it has a student voting process representative of many states, this note seeks to accomplish four purposes: (1) an examination of the case law often underlying the presumption against student registrability; (2) an analysis of recent constitutional developments in the due process and equal protection areas as they relate to the particular problems posed by the student voter; (3) a survey of the competing local and student interests in the student vote issue; and (4) a conclusion regarding the likelihood that thwarted student voters can follow the paths of other disfranchised groups …

Constitutional Law - Equal Protection - Legality Of Plans For Maintaining School Segregation, John B. Huck

Michigan Law Review

On May 19, 1954, the Supreme Court of the United States declared that segregation in public schools was a denial of equal protection of the law. Since that date many and varied plans have been proposed to maintain segregated education by avoiding the impact of the decision. The legality of three of these proposed avoidance devices will be analyzed in this comment.

Constitutional Law- Zoning - Private High Schools Excluded From Zone In Which Public High Schools Permitted, William D. Keeler S.Ed.

Michigan Law Review

Among the uses permitted in the "A" residence zone by the Wauwatosa, Wisconsin zoning ordinance were "(e) Public Schools and Private Elementary Schools." The city building inspector denied to plaintiff, a private, non-profit religious corporation, a permit for the construction of a private high school in that zone. Plaintiff brought an action in mandamus to compel the issuance of such a permit, alleging that the ordinance deprived plaintiff of property without due process of law, and denied to it the equal protection of the laws guaranteed by the Fourteenth Amendment. The lower court granted the writ. On appeal, held, …