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Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse Jul 2021

Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse

Faculty Scholarship

Indian Civil Rights/Education Lawsuit

View this and other court documents at Turtle Talk.

Congress’s declared federal policy is “to fulfill the Federal Government’s unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children.” 25 U.S.C. § 2000. This federal policy is the touchstone of the federal government’s trust obligation to Indian families and their children. When the BIA (through the BIE) fails to protect the rights of Indian children to “educational opportunities that equal or exceed those for all other students in the United States,” courts have ...


Eyes Wide Shut: Using Accreditation Regulation To Address The “Pass-The-Harasser” Problem In Higher Education, Susan Saab Fortney, Theresa Morris Jul 2021

Eyes Wide Shut: Using Accreditation Regulation To Address The “Pass-The-Harasser” Problem In Higher Education, Susan Saab Fortney, Theresa Morris

Faculty Scholarship

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when hiring faculty and administrators with little or no scrutiny related to their past misconduct. Critics use the term “pass the harasser” or more pejoratively, “pass the trash” to capture the role that institutions play in allowing individuals to change institutions without the new employer learning ...


“Trumping” Affirmative Action, Vinay Harpalani Jan 2021

“Trumping” Affirmative Action, Vinay Harpalani

Faculty Scholarship

This Essay examines the Trump administration’s actions to eliminate affirmative action, along with the broader ramifications of these actions. While former-President Trump’s judicial appointments have garnered much attention, the Essay focuses on the actions of his Department of Justice, Civil Rights Division. It lays out the Department of Justice’s investigations of Harvard and Yale, highlighting how they have augmented recent lawsuits challenging race-conscious admissions policies by Students for Fair Admissions. It considers the timing of the DOJ’s actions, particularly with respect to Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. It examines the ...


Let's Get Serious - The Clear Case For Compensating The Student Athlete - By The Numbers - A University Of Michigan Athletic Program Case Study, Neal Newman Jan 2021

Let's Get Serious - The Clear Case For Compensating The Student Athlete - By The Numbers - A University Of Michigan Athletic Program Case Study, Neal Newman

Faculty Scholarship

Should college athletes be compensated for their play and if so, how? The first question has been a debate for some time now. But the second question—the “how”—not so much. This writing addresses both questions in depth. With the Ed O’Bannon case that was decided back in August of 2014 and the palaver the Northwestern football team raised in their efforts to unionize, it is acknowledged that the discussions on this issue may have reached its crescendo years ago. That is until now. On September 27, 2019, Gavin Newsom, the Governor of California, signed into law Senate ...


Inside The Master's Gates: Resources And Tools To Dismantle Racism And Sexism In Higher Education, Susan Ayres Jan 2021

Inside The Master's Gates: Resources And Tools To Dismantle Racism And Sexism In Higher Education, Susan Ayres

Faculty Scholarship

The spring of 2020 saw waves of protest as police killed people of color. After George Floyd’s death, protests erupted in over 140 cities. The systemic racism exhibited by these killings has been uncontrollable, hopeless, and endless. Our country is facing a national crisis. In response to the police killings, businesses, schools, and communities held diversity workshops across the nation, and businesses and organizations posted antiracism statements. Legislators and City Councils introduced bills and orders to defund police and to limit qualified immunity. As schools prepared for the fall semester, teachers considered ways to incorporate antiracism materials into the ...


Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain Mar 2020

Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain

Faculty Scholarship

In the U.S. and around the globe, concerns over a decline in civility and tolerance and a surge in lethal extremist violence motivated by hatred of religious and racial groups make condemning—and preventing—hatred and bigotry seem urgent. What meaning can the ideal of e pluribus unum (“out of many one”) have in this fraught and polarized environment? Within the U.S., a long line of jurists, politicians, and educators have invoked civic education in public schools as vital to preserving constitutional democracy and a healthy pluralism. How can schools carry out such a civic role in times ...


Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Jan 2020

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar

Faculty Scholarship

No abstract provided.


Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis Jan 2020

Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis

Faculty Scholarship

Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement ...


The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson Jan 2020

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The pandemic has had a particularly grave impact on people of color and low-income individuals, while also affecting a wide array of tenants, students, and health care, service and “gig” workers. One consequence for law and policy is that addressing the social dislocations caused by the pandemic might lead to profound changes in what Americans consider essential goods for a sustainable society. This chapter examines government efforts to buttress the ...


The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson Jan 2020

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the ...


Special Education Disparities Are Social Determinants Of Health: A Role For Medical-Legal Partnerships, Karen Bonuck, Leah Hill Jan 2020

Special Education Disparities Are Social Determinants Of Health: A Role For Medical-Legal Partnerships, Karen Bonuck, Leah Hill

Faculty Scholarship

Problem: Education is a key social determinant of health. The federal Individuals with Disabilities Education Act (IDEA) purportedly affords children the right to a free and appropriate education. Yet, racial, ethnic, and economic disparities exist regarding appropriate identification and classification of children with needs for special education, and access to services.

Purpose: This article first highlights gaps and disparities in special educational services, and their structural linkage to poverty. The second section describe the first years of a medical–legal collaboration between a University Center of Excellence in Developmental Disabilities (UCEDD) and Fordham University, focused on special education.

Key Points ...


Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short Jul 2019

Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short

Faculty Scholarship

merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a ...


Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney Oct 2018

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of ...


Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose Sep 2018

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Faculty Scholarship

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising ...


Taming Title Ix Tensions, Naomi Mann Feb 2018

Taming Title Ix Tensions, Naomi Mann

Faculty Scholarship

The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The ...


Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins Jan 2018

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins

Faculty Scholarship

No abstract provided.


School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert Jan 2018

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Faculty Scholarship

More than ten years have passed since the United States Supreme Court last addressed school desegregation. In its abbreviated tenure in the decades following Brown v. Board of Education, school desegregation was successful in many respects. Longstanding policies of state-sponsored educational apartheid eventually ended. A great many school buildings became more diverse. Countless students of color gained access to improved academic opportunities and better life outcomes. A consensus formed around the positive impacts that desegregation could have on both students of color and white students. When courts retreated from upholding desegregation policies, many communities developed their own voluntary plans, some ...


Higher Education As A Human Right, Heidi Gilchrist Jan 2018

Higher Education As A Human Right, Heidi Gilchrist

Faculty Scholarship

No abstract provided.


Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis Jan 2017

Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis

Faculty Scholarship

As a matter of civil rights, Title IX mandates that federally funded educational institutions address reports of sexual assault. Often disciplined-student plaintiffs argue unsuccessfully that the college or university’s decision to discipline them is tainted by “reverse” sex discrimination. This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. It provides a historical context for Title IX’s application to sexual assault on campuses and the requirements the law imposes on the educational institutions. Next, it describes the role Title IX plays ...


Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman Jan 2017

Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman

Faculty Scholarship

In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant ...


Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao Jan 2017

Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao

Faculty Scholarship

No abstract provided.


For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo Jan 2016

For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.


Democratizing Higher Education: Defending And Extending Income-Based Repayment Programs, Frank A. Pasquale Jan 2016

Democratizing Higher Education: Defending And Extending Income-Based Repayment Programs, Frank A. Pasquale

Faculty Scholarship

No abstract provided.


Inequality, Discrimination And Sexual Violence In Us Collegiate Sports, Erin E. Buzuvis, Kristine Newhall Jan 2016

Inequality, Discrimination And Sexual Violence In Us Collegiate Sports, Erin E. Buzuvis, Kristine Newhall

Faculty Scholarship

While college athletics attract thousands of participants and millions of fans each year, examination of United States college athletics reveals a pattern of inequality, discrimination and abuse, which operates to foreclose women's access and suppress women's interest in athletic participation and leadership. This Chapter examines three gender related issues of integrity in college athletics: gender discrimination in athletic participation and opportunity; barriers to leadership for women coaches and administrators; and the relationship between athletics and sexual violence at college and universities. The Chapter also identifies a number of remedies that can mitigate these problems involving the Department of ...


Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank Jan 2016

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank

Faculty Scholarship

Public education in the United States has been crippled by a combination of entrenched bureaucratic governance and special-interest politics. To remedy these failings, school districts, states, and the federal Education Department have adopted education reforms characterized by rigorous outcome-focused standards and assessments and the empowering of public schools, charter or otherwise, to meet the standards. Despite promising initial results, however, the reforms have been widely criticized, including by the populations they most seek to help. To explain this paradox, this Article first tries to assimilate the new education reforms to the most frequently proposed alternatives to bureaucratic governance — marketization, managerialism ...


Every Dollar Counts: In Defense Of The Education Department's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa Jan 2016

Every Dollar Counts: In Defense Of The Education Department's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa

Faculty Scholarship

Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that, in order to succeed in school, low-income children require more educational resources than other students. Yet, a half century later, many school districts continue to spend dramatically less on their high-poverty schools than on those more privileged. Districts do this by permitting their most experienced and highly salaried teachers to opt into schools with more privileged students, then failing to count teacher salaries in school funding comparisons, disguising the fact that Title I schools with less experienced, lower salaried ...


Cocktails On Campus: Are Libations A Liability?, Susan S. Bendlin Jan 2015

Cocktails On Campus: Are Libations A Liability?, Susan S. Bendlin

Faculty Scholarship

No abstract provided.


Seeking Educational Equality In The North: The Integration Of The Hilburn School System, Peter C. Alexander Jan 2015

Seeking Educational Equality In The North: The Integration Of The Hilburn School System, Peter C. Alexander

Faculty Scholarship

No abstract provided.


Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis Jan 2015

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college ...


Test Unrest: New York City's Examination High Schools, Aaron J. Saiger Jan 2015

Test Unrest: New York City's Examination High Schools, Aaron J. Saiger

Faculty Scholarship

New York City bases admissions to its eight “specialized” high schools entirely upon scores on a single standardized test. This policy, hotly contested when it was codified by state law in 1971, faces renewed political and legal attacks today. Single-test admissions consistently result in alarmingly low levels of African-American and Hispanic enrollment at the most sought-after specialized schools. This brief essay compares today’s debate to that of 1971. It notes two major developments since then. The City now has eight test-only high schools, not three. Moreover, the eight schools now function in the larger context of New York’s ...