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Articles 1 - 12 of 12
Full-Text Articles in Law
The Failure Of Education Federalism, Kristi L. Bowman
The Failure Of Education Federalism, Kristi L. Bowman
University of Michigan Journal of Law Reform
Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in …
Postracial Remedies, Derrick Darby, Richard E. Levy
Postracial Remedies, Derrick Darby, Richard E. Levy
University of Michigan Journal of Law Reform
The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when rigorous statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and the …
The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman
The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman
University of Michigan Journal of Law Reform
The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …
Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson
Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson
University of Michigan Journal of Law Reform
Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian
University of Michigan Journal of Law Reform
This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
University of Michigan Journal of Law Reform
Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …
Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos
Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos
University of Michigan Journal of Law Reform
The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …
Rethinking Gender Opportunities: Nontraditional Sports Seasons And Local Preferences, Kristen Boike
Rethinking Gender Opportunities: Nontraditional Sports Seasons And Local Preferences, Kristen Boike
University of Michigan Journal of Law Reform
In Communities for Equity v. Michigan High School Athletic Association, the Court of Appeals for the Sixth Circuit affirmed a district court decision, holding that the scheduling of high school girls' sports in "nontraditional" seasons in Michigan violated the Equal Protection Clause. The Supreme Court of the United States, granting certiorari, vacated and remanded this case back to the Sixth Circuit. This Note suggests reasons why the Sixth Circuit and/or the United States Supreme Court should protect the Michigan High School Athletic Association's (MHSAA) current scheduling of sports seasons. Specifically, using the model provided by Romer v. Evans and …
Expressivism, Empathy And Equality, Rachel D. Godsil
Expressivism, Empathy And Equality, Rachel D. Godsil
University of Michigan Journal of Law Reform
In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, …
The Constitution, The White House, And The Military Hiv Ban: A New Threshold For Presidential Non-Defense Of Statutes, Chrysanthe Gussis
The Constitution, The White House, And The Military Hiv Ban: A New Threshold For Presidential Non-Defense Of Statutes, Chrysanthe Gussis
University of Michigan Journal of Law Reform
The President's constitutional duty to 'take Care that the Laws be faithfully executed" implies that the President is entrusted with the responsibility to defend those laws against court challenges. On occasion, however, Presidents faced with legislation that they deem unconstitutional have declined to defend that legislation against legal challenges. On February 10, 1996, President Clinton declined to defend a provision included in the National Defense Authorization Act for Fiscal Year 1996 that required discharge from the military of all HIV-positive servicemembers because he believed that the provision violated the Equal Protection Clause of the Fourteenth Amendment. This Note explores whether …
School Finance Adequacy As Vertical Equity, Julie K. Underwood
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, …
Katzenbach V. Morgan And The 18 Year Old Vote, E. Rick Buell Ii
Katzenbach V. Morgan And The 18 Year Old Vote, E. Rick Buell Ii
University of Michigan Journal of Law Reform
Recently the 91st Congress passed the Voting Rights Act Amendments of 1970. The provisions of the statute include Title III which extended the right of suffrage to eighteen year old citizens in all federal, state, and local elections. The basis for enacting Title III was the belief of Congress that citizens between the ages of eighteen and twenty-one, by being denied the right to vote, were being denied equal protection of the laws as required by the Fourteenth Amendment to the United States Constitution. The purpose of this note is to briefly trace the historical development of Congress' power to …