Law Commons^™

Decoupling Property And Education, Nicole Stelle Garnett

Journal Articles

Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that decoupling property and education also advances at least economic development goals. …

The Educated Retail Investor: A Response To "Regulating Democratized Investing", Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

The diffusion of mobile-first investing apps, like Robinhood, has increased retail investor participation in financial markets, particularly from the Millennial and GenZ generations, and has increased the diversity of retail investors. However, mobile-first investing apps are not free from controversy. In Regulating Democratized Investing, Abraham Cable tackles the debate on regulating mobile-first investing apps and largely opposes paternalistic regulation, which would raise unsurmountable barriers at the entrance of the stock market for retail investors. But it concedes to a form of regulation that in Cable’s own words “serves ultra-retail investors a modest portion of what they really want.” We strongly …

All The Presidents' Dreamers: Immigration Reform That Biden And Trump Can Agree On (And Why That Reform May Be Elusive), Victor C. Romero

Journal Articles

While a sizeable gulf exists between the Trump and Biden administrations’ approaches to immigration, there is one policy area where these presidents would see eye-to-eye: a legal pathway for “Dreamers,” longtime undocumented residents who initially came to the U.S. as children. Notwithstanding this exceptional example of bipartisanship, how the nation now moves forward to create such a pathway is a conundrum. The political divide that has stalled a two-decades-long search for a congressional solution has its roots in America’s longstanding ambivalence about whether and how to provide basic opportunities to the least of its denizens. This Essay traces the current …

Post-Accountability Accountability, Nicole Stelle Garnett

Journal Articles

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 …

Continuing Derrick Bell's Devotion In Creative Action, Angela Mae Kupenda

Journal Articles

I remember my first time seeing Derrick Bell in person and hearing him speak, just a few years before he passed away. I was in awe of him for many reasons, but primarily for two reasons. First, I noted from watching him with his devoted students, how mutual was the devotion coming from him—devotion to them as people and as those who would surely carry on his great work of seeking to forge equality in America and beyond. And second, I was in awe of him because of his devotion to the elimination of racism, while at the same time …

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. …

Post-Graduate Legal Training: The Case For Tax-Exempt Programs, Adam Chodorow, Philip T. Hackney

Journal Articles

The challenging job market for recent law school graduates has highlighted a fact well known to those familiar with legal education: A significant gap exists between what students learn in law school and what they need to be practice-ready lawyers. Legal employers historically assumed the task of providing real-world training, but they have become much less willing to do so. At the same time, a large numbers of Americans – and not just those living at or below the poverty line – are simply unable to afford lawyers. In this Article, we argue that post-graduate legal training, similar to post-graduate …

The Legal Landscape Of Parental-Choice Policy, Nicole Stelle Garnett

Journal Articles

Private school choice programs raise important legal questions regarding students’ rights to an education, parents’ rights to choose their children’s schools, state constitutions, race and disability, and religious liberty.

Disparate Impact, School Closures, And Parental Choice, Nicole Stelle Garnett

Journal Articles

We live in an era of parental choice. Today, forty-two states and the District of Columbia authorize charter schools, and twenty states and the District of Columbia permit students to use public funds to attend a private school. During the 2012-2013 school year, nearly 2 million children attended charter schools, and nearly 250,000 children received publicly funded scholarship to attend a private school. The expanding menu of publicly funded educational options is one (but by no means the only) factor contributing to the current, intensely controversial, waves of urban public school closures. In school-closure debates, proponents of traditional public schools …

Are Charters Enough Choice? School Choice And The Future Of Catholic Schools, Nicole Stelle Garnett

Journal Articles

An essay is presented on Catholic and charter schools and the closing of such schools in the U.S. The academic performance, parental involvement and the after-school religious education targeted for charter school students is discussed. The connections between the Catholic and charter schools and the legal issues governing conversion to charter schools is also discussed along with the concerns in the urban community due the closure of Catholic schools.

Catholic Schools, Charter Schools, And Urban Neighborhoods, Margaret F. Brinig, Nicole Stelle Garnett

Journal Articles

This paper addresses implications for urban neighborhoods of two dramatic shifts in the American educational landscape: (1) the rapid disappearance of Catholic schools from urban neighborhoods, and (2) the rise of charter schools. In previous studies, we linked Catholic school closures to increased disorder and crime, and decreased social cohesion, in Chicago neighborhoods. This paper turns to two questions unanswered in our previous investigations. First, because we focused exclusively on school closures in our previous studies, we were uncertain whether our results reflected the work that open Catholic schools do as neighborhood institutions or whether we were finding a “loss …

Immigrant Education And The Promise Of Integrative Egalitarianism, Victor C. Romero

Journal Articles

Although not an equal protection case, Martinez v. Regents of the University of California challenges us to grapple with the Supreme Court’s post-Brown commitment to equal opportunity within the context of immigrant higher education. Sadly, Brown’s progeny from Bakke to Parents Involved reveals the cost of embracing a color-blind constitutionalism unmoored from a fundamental commitment to vigilantly combat subordination and dismantle unearned privilege. More optimistically, the Supreme Court’s gay rights jurisprudence developed in Romer v. Evans and Lawrence v. Texas provides insights into how a conservative court can accurately distinguish irrational discrimination from democratic deliberation, a lesson that might help …

Affordable Private Education And The Middle Class City, Nicole Stelle Garnett

Journal Articles

This Essay, which was prepared for a University of Chicago Law School’s symposium on “Rethinking the Local Government Toolkit,” argues that affordable private schools serve an important urban-development function: They partially unbundle the residential and educational decisions of families with children. Thus, state and local officials hoping to make our make central city neighborhoods attractive places to raise children should consider employing a familiar urban development tool - tax incentives - to make quality private schools more financially accessible to middle-income families. The Essay proceeds in three parts. Part I builds the case for a middle class city. Part II …

Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda

Journal Articles

Although there are surmountable legal barriers to racial integration in education, fuller integration is possible. But first, whites must see how they benefit from diversity, and, second, whites must take simple steps toward integration that may, in turn, reveal to whites their desire to become more fully integrated. These two steps may help remove the limiting point to true integration.

Bush V. Holmes: School Vouchers, Religious Freedom, And State Constitutions, Richard W. Garnett, Christopher S. Pearsall

Journal Articles

In Zelman v. Simmons-Harris, the Supreme Court of the US ruled that the First Amendment’s Religion Clause, i.e. ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’, permits publicly funded school-voucher experiments that include private and religious schools. In other words, the Court made it clear—albeit by a narrow 5-4 margin—that governments do not unconstitutionally ‘establish[]’ religion merely by permitting eligible students to use publicly funded scholarships to attend qualifying religious schools, so long as the students’ parents are able to make a ‘true private choice’ for the school their children attend.

However, …

Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner

Journal Articles

This comment analyzes the current state of students' free speech rights in the context of creative writing assignments and examines potential First Amendment applications to the Pennsylvania System of School Assessment (PSSA), a statewide, mandatory, standards-based exam administered to Pennsylvania public school students. The PSSA, which currently contains a writing assessment for students in sixth, ninth, and eleventh grades requiring students to write essays in response to prompts, is scored anonymously by private entities under contract with the Pennsylvania Department of Education. Those private subcontractors have "red-flagging" procedures in place to identify essays containing imagery or themes that indicate imminent …

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.

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Journal Articles

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good.

First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O'Connor's fine-tuned aesthetic reactions to the minutiae of Ohio's school-choice experiment.

Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a …

Education Reform At The Crossroads: Politics, The Constitution, And The Battle Over School Choice, Richard W. Garnett

Journal Articles

The "Education Reform at the Crossroads" Conference's four panels tackled the education-reform and school-choice questions from a variety of perspectives—one panel, led by Cleveland's indefatigable councilwoman and education revolutionary Ms. Fannie Lewis, explored the history and increasingly visible politics of the school-choice debate—in particular, the marked increase in support for school choice among African Americans"—while another group focused on the constitutionality of including religious schools in voucher programs and on the historical connection between anti-Catholic nativism and the common-school movement. A third panel discussed framing school-choice as a "civil rights issue" and the fourth—which included political scientist and education researcher …

Legal Writing In The New Millennium: Lessons From A Special Teacher And A "Special Classroom", Kenneth F. Ripple

Journal Articles

After receiving the invitation to address this conference, I found my thoughts often returning to my own education in legal writing. As I recall, my legal writing experience in law school was not a very intensive—or positive—one. As was quite typical in that era (almost thirty-three years ago), the program at my law school was not very extensive: we wrote a memorandum of law and a brief under the guidance of a graduate law student.

My real legal writing education took place in the study of the Chief Justice of the United States. For the better part of five years, …

Common Sense In Formation For The Common Good - Justice White's Dissents In The Parochial School Aid Cases: Patron Of Lost Causes Or Precursor Of Good News, John J. Coughlin

Journal Articles

This Article envisions a new order for public education in this country. Pursuant to the new order, a free market under appropriate government regulation rather than unchecked political authority would determine the flow of public aid to various schools. Such an order would enable parents to choose what kind of school, secular or sectarian, presents the most desirable educational environment. The new arrangement would also provide incentives for quality education, as schools now run by the state government would have to compete on an even field with schools that currently receive no public funds.

It has been almost twenty years …

Lawyers And Liberations, Robert E. Rodes

Journal Articles

The Jesuit educational tradition stresses the importance of service to the community and especially to its underprivileged members. Much of the discussion at the Ignatian Year celebration held at St. Louis University centered on the role of the law school in the Jesuit educational tradition. However, I would like to propose that this discussion take on a much larger focus.

The ideas of community service, solidarity with the poor and professionalism within an ethical context, although integral to the Jesuit tradition, are relevant to society as a whole. Furthermore, integration of these concepts into law school education is merely a …

Aspects Of The English Legal System, Geoffrey J. Bennett

Journal Articles

The object of this article is to point out some of the more obvious features of the English legal system for the benefit of people with no legal training. Teachers, school governors, and parents are all increasingly called upon to have some insight into the way the law affects their activ­ities, but the natural tendency is perhaps to concentrate only on those discrete areas that are of immediate concern. Sometimes, however, a broader perspective on how the parts articulate with the whole is essential to understanding what can be done with the system or why a certain result or procedure …