Law Commons^™

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

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This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp

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The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce …

Pursuing Diversity: From Education To Employment, Amy L. Wax

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A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

Our Girls, Our Future: Investing In Opportunity And Reducing Reliance On The Criminal Justice System In Baltimore, Cara Mcclellan

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Across the country, large numbers of Black students are pushed out of the classroom and into the juvenile or criminal justice system through the school-to-prison pipeline. One reason is that the number of police in schools has increased dramatically in recent decades, expanding juvenile or criminal justice involvement for youth. National data on school-based arrests and referrals to law enforcement reveals that Black and Latinx students are disproportionately targeted for harsh punishment. Moreover, national data shows that Black girls are the fastest growing demographic affected by school discipline, arrests, and referrals to the juvenile justice system. For Black girls, the …

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

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This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani

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One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Essay offers crucial context by reminding readers …

Improving Higher Education Regulation, Wendell Pritchett

The Regulatory Review in Depth

No abstract provided.

Behavioral Economics Of Education: Progress And Possibilities, Adam Lavecchia, Heidi H. Liu, Philip Oreopoulos

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Behavioral economics attempts to integrate insights from psychology, neuroscience, and sociology in order to better predict individual outcomes and develop more effective policy. While the field has been successfully applied to many areas, education has, so far, received less attention – a surprising oversight, given the field's key interest in long-run decision-making and the propensity of youth to make poor long-run decisions. In this chapter, we review the emerging literature on the behavioral economics of education. We first develop a general framework for thinking about why youth and their parents might not always take full advantage of education opportunities. We …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

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With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Discrimination As Disruption: Addressing Hostile Environments Without Violating The Constitution, Cara Mcclellan

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In early March 2015, a video surfaced showing members of the Sigma Alpha Epsilon (SAE) fraternity at the University of Oklahoma chanting: “There will never be a nigger at SAE . . . you can hang him from a tree, but he’ll never sign with me.” Following the wide circulation of this video, the university’s president expelled two students leading the chants in the video for creating a hostile racial environment on campus. Legal commentators criticized this disciplinary action, arguing that it violated the First Amendment and principles of academic freedom. On the other hand, a review of Title VI …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

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The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Undressing Difference: The Hijab In The West, Anita L. Allen

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On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country’s education statute, banning the wearing of "conspicuous" signs of religious affiliation in public schools. Prohibited items included "a large cross, a veil, or skullcap." The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, "du principe de laïcité." Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott …

The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri

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This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …

What Does Bakke Require Of Law Schools?, Howard Lesnick

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No abstract provided.

The Desegregation Dilemma: A Vote For Voluntarism, Frank Goodman

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No abstract provided.

De Facto School Segregation: A Constitutional And Empirical Analysis, Frank I. Goodman

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No abstract provided.