Law Commons^™

Douglass, Lincoln, And Douglas Before Dred Scott: A Few Thoughts On Freedom, Equality, And Affirmative Action, Henry L. Chambers Jr.

Law Faculty Publications

In 1854, Senator Stephen Douglas, Abraham Lincoln, and Frederick Douglass delivered speeches about the newly passed Kansas-Nebraska Act. That law opened the Kansas and Nebraska Territories to slavery by extending popular sovereignty, the practice of letting territorial majorities decide whether to allow slavery in a territory, to them. Given before Dred Scott v. Sandford, the infamous case in which the Supreme Court ruled that Black Americans—whether freeborn, freed, or enslaved—could not be citizens of the United States absent congressional action or constitutional amendment, the speeches are worth revisiting. They focus on whether or how slavery should be limited, reflecting …

Why Kindergarten Is Too Late: The Need For Early Childhood Remedies In School Finance Litigation, Kevin Woodson

Law Faculty Publications

In the remedial phases of school finance lawsuits, courts and legislatures have sought to provide poor children access to adequate educational opportunities through remedies and reforms focusing almost exclusively on improving educational conditions within elementary and secondary schools. This approach is both inefficient and ineffective. As a large and growing body of scientific and social science research reveals, class-based disparities in quality of care and enrichment during the first years of life can have life-long effects that inhibit the ability of many poor children to succeed academically, thereby depriving them of equal and adequate access to educational opportunity. The failure …

Inequitable Schools Demand A Federal Remedy, Kimberly J. Robinson

Law Faculty Publications

It is not often that the U.S. Supreme Court admits that one of its previous decisions, especially one that shaped the fabric of our nation, was fundamentally wrong. One such instance occurred in 1954, when the court famously declared, in Brown v. Board of Education, that the doctrine of “separate but equal” public schools for black children and white children was unconstitutional. In Brown, the court overturned, for public schools, its approval of this doctrine in Plessy v. Ferguson (1896) and established that segregated schools violated the equal protection clause of the Fourteenth Amendment. The court also proclaimed that …

Fisher’S Cautionary Tale And The Urgent Need For Equal Access To An Excellent Education, Kimberly J. Robinson

Law Faculty Publications

In this Comment, I argue that much greater care and attention must be paid to the educational opportunity gaps and resulting achievement gaps that prompt many colleges and universities to rely on affirmative action. Increased attention to greater equality and excellence in elementary and secondary education can help reduce or eliminate the need for affirmative action, which is an approach that fundamentally aims to ensure equality. Without additional attention to closing opportunity gaps, the Court may declare that the time has come for affirmative action to end, but the United States will not be equipped to maintain diverse, selective postsecondary …

Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith J. Harbach

Law Faculty Publications

This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 25, No. 1 (Fall 2016), Dale Margolin Cecka

Law Faculty Publications

What You Do and Do Not Learn in Law School: A Family Law Associate’s Perspective

Hiring and Supervising New Lawyers: A Family Law Partner’s Perspective

Chair’s Column

Law Faculty News and News and Events Around the Commonwealth

Call for Nomination: William R. Rakes Leadership in Education Award

2016-2017 Board of Governors

It’S Time For The Fourth Circuit To Rethink Deshaney, Dale Margolin Cecka

Law Faculty Publications

In 2015, the Fourth Circuit heard Doe v. Rosa, in which the parent plaintiffs sought to extend civil liability to the Citadel’s president, for failing to protect their minor sons from sex abuse inflicted by one of the Citadel’s employees. In dismissing the matter, the Fourth Circuit followed precedent set by the Supreme Court years ago in Deshaney. This interpretation of Deshaney, however, is no longer valid in light of the growing number of sexual misconduct cases involving educational institutions. Strictly applying Deshaney encourages schools to place their interests higher than the security of their students. In …

Diversity Without Integration, Kevin Woodson

Law Faculty Publications

The de facto racial segregation pervasive at colleges and universities across the country undermines a necessary precondition for the diversity benefits embraced by the Court in Grutter — the requirement that students partake in high-quality interracial interactions and social relationships with one another. This disjuncture between Grutter’s vision of universities as sites of robust cross-racial exchange and the reality of racial separation should be of great concern, not just because of its potential constitutional implications for affirmative action but also because it reifies racial hierarchy and reinforces inequality. Drawing from an extensive body of social science research, this article explains …

The K-12 Funding Crisis, Kimberly J. Robinson

Law Faculty Publications

Current discussions about K-12 education often highlight the reforms that seek to improve the quality of schooling. Some of these measures—the common-core standards, teacher evaluation, and, most recently, the Every Student Succeeds Act—undoubtedly have the potential to improve educational opportunities for students. However, what is often missing from education reform conversations is how these reforms can create sustainable changes to the education system. We believe the system's very foundations are broken, and school funding is one of the most pressing issues in need of repair.

No Quick Fix For Equity And Excellence: The Virtues Of Incremental Shifts In Education Federalism, Kimberly J. Robinson

Law Faculty Publications

In this Article, I join these calls for the federal government to lead states to reform their school funding systems. In doing so, I build upon my recent scholarship that calls for additional federal leadership insisting that states prioritize equity and excellence in education. I recommend that we restructure education federalism by requiring the federal government to serve as the ultimate guarantor of equal access to an excellent education. My theory of education federalism embraces federal policymaking strengths in education, such as federal research, technical, and financial assistance, that support state and local reforms to promote equity and excellence. This …

Disrupting Education Federalism, Kimberly J. Robinson

Law Faculty Publications

The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation's education goals. One ofthe nation's unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform,I argue that disrupting the nation's longstanding approach to education federalism-which I define as the balance of power between federal, …

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 23, No. 2 (Spring 2015), Dale Margolin Cecka

Law Faculty Publications

Contents

William & Mary Hosts Capital Area Legal Writing Conference, by Laura Killinger, Director of the Legal Practice Program and Professor of the Practice at William & Mary Law School

Reliving Student Experiences at the Legal Writing Conference, by Kristina D. Rutledge, professor of advanced legal writing at Washington & Lee

Chair’s Column, Professor Jim Moliterno of Washington and Lee School of Law

Section’s Website Update

Retired Magistrate Judge B. Waugh Crigler Receives VSB Leadership in Education Award

2015 Annual Meeting

News and Events Around the Commonwealth

Law Faculty News

2014-2015 Board of Governors

How Reconstructing Education Federalism Could Fulfill The Aims Of Rodriguez, Kimberly J. Robinson

Law Faculty Publications

In the Rodriguez decision, the U.S. Supreme Court held that the plaintiffs did not have a right under the Constitution's Equal Protection Clause, which required the state of Texas to remedy disparities in funding for schools in high-wealth and low-wealth school districts. One of the principal reasons that the Court rejected the plaintiffs' claims was the need to maintain the current balance of power between the federal and state governments over education. Indeed, the Court acknowledged in Rodriguez that even though all equal protection claims implicate federalism, "it would be difficult to imagine a case having a greater potential impact …

The High Cost Of The Nation's Current Framework For Education Federalism, Kimberly J. Robinson

Law Faculty Publications

This Article will show the consistent ways that the current understanding of education federalism within the United States has hindered three of the major reform efforts to promote a more equitable distribution of educational opportunity: school desegregation, school finance litigation, and, most recently, NCLB. In exploring how education federalism has undermined these efforts, this Article adds to the understanding of other scholars who have critiqued these reforms and examined why the nation has failed to guarantee equal educational opportunity. For example, scholars have argued that the failure to undertake earnest efforts to achieve equal educational opportunity is caused by a …

"Hope And Despondence": Emerging Adulthood And Higher Education's Relationship With Its Nonviolent Mentally Ill Students, Susan P. Stuart

Law Faculty Publications

No abstract provided.

On The Need For Public Boarding Schools, Kevin Woodson

Law Faculty Publications

Nowhere is the inadequacy of American public education more striking than in high-poverty, urban schools populated by disadvantaged minority students. Despite decades of legal, policy, and scholarly efforts aimed at addressing the challenges facing these schools, the academic prospects of poor students are currently as grim as they have been in recent memory. Reformers seeking to address this problem have largely focused on transforming public education from within by focusing on school conditions or teacher performance.. These efforts have largely failed to bring about real progress: despite decades of litigation and reform, our nation’s most disadvantaged children continue to lack …

Canines On Campus: Companion Animals At Postsecondary Educational Institutions, Rebecca J. Huss

Law Faculty Publications

This Article focuses on the issues that arise when students wish to attend a postsecondary institution accompanied by an animal. The Article begins by analyzing the federal law applicable to students bringing service and assistance animals to campus. The use of animal-assisted activities on campus is also explored. The Article continues with an examination of policies allowing students to have companion animals in campus housing. Concerns raised by administrators about allowing animals on campus are then considered. Finally, the Article sets forth the measures an educational institution should implement to ensure compliance with the law and proposes actions that can …

A New Sheriff In Town: Armistice In The War On Drugs And Students' Civil Rights, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Reviewing Joan Delfattore's Knowledge In The Making, Suzanne Corriell

Law Faculty Publications

A book review of Joan DelFattore's Knowledge in the Making.

In Loco Parentis In The Public Schools: Abused, Confused, And In Need Of Change, Susan P. Stuart

Law Faculty Publications

In loco parentis is a common law doctrine that has been used to characterize the on-campus relationship between a school and its students, but its abuse has led to such absurd cases as Safford Unified School District No.1 v. Redding. Although waning in higher education, the doctrine is experiencing a resurgence in elementary and secondary schools. As originally conceived, the doctrine was used primarily to justify and defend student disciplinary actions: the school stood in the shoes of the parent and had authority to discipline, almost at will. The doctrine, however, never seemed to have a corollary in the …

The Constitutional Future Of Race-Neutral Efforts To Promote Diversity And Avoid Racial Isolation In Our Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools …

Participatory Lawyering & The Ivory Tower: Conducting A Forensic Law Audit In The Aftermath Of Virginia Tech, Susan P. Stuart

Law Faculty Publications

The tragic events at Virginia Tech in 2007 sent a cold wind blowing through the halls of higher education institutions: a Virginia Tech student, who had fallen through the cracks of the school's mental health services and disciplinary procedures, armed himself with firearms and murdered thirty-two students and a professor before committing suicide. In the wake of that massacre, several states and individual interest groups issued reports on campus readiness for similar catastrophes. A consistent theme throughout those reports emphasized the necessity for individual institutions to review their procedures to deal with campus violence.

This Article focuses on that institutional …

Citizen Teacher: Damned If You Do, Damned If You Don't, Susan P. Stuart

Law Faculty Publications

The recent Supreme Court case of Garcetti v. Ceballos is becoming one of the most-used cases in its mere two-year history. It denies to public employees the protection of the First Amendment when speaking in their official duties. In reviewing the cases both leading up to and then relying oh Garcetti, one is struck by the inherent conflict that nowpermeates some school board-employee relationships. Whereas preceding cases attempted to reach a balance between the school board and its employees' speech rights, bad management practices now seem to trump the First Amendment. Such practices have school boards discharging teachers and …

The Irs And Your Politically Controversial Speakers, Mary L. Heen

Law Faculty Publications

During the 2008 election cycle, we can expect an upsurge of incidents in which college and unive rsity administrators rescind legitimate invitations to politically controversial speakers. As Academic Freedom and Outside Speakers, a statement issued by the MU P's Committee A on Academic Freedom and Tenure, affirms, "Because academic freedom requires the liberty to learn as well as to teach, colleges and universities should respect the prerogati ves of campus organizations to select outside speakers they wish to hear." (The statement begins on page 62 .) In the past, administrators have sometimes cited the lack of balance represented by the …

The Case For A Collaborative Enforcement Model For A Federal Right To Education, Kimberly J. Robinson

Law Faculty Publications

This Article proposes an innovative approach for directing the expanding federal role in education that will encourage states to address disparities in educational opportunities that prevent disadvantaged students from achieving their full potential. The proposed approach builds on the understanding reflected in NCLB that the federal government will remain critical in public education reform. This Article reexamines one avenue for federal involvement that the U.S. Supreme Court considered in several cases and that scholars have debated for more than thirty years: a federal right to education.

San Antonio Independent School District v. Rodriguez explicitly offered the Supreme Court the opportunity …

Lex-Praxis Of Education Informational Privacy For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.

A Local Distinction: State Education Privacy Laws For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Constitutional Lessons For The Next Generation Of Public Single-Sex Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

Single-sex public elementary and secondary schools are making a comeback. School districts are structuring these schools in a variety of ways, including by providing a single-sex public school for only one sex or by offering single-sex schools for both sexes. These disparate structures of single-sex schools create distinct potential harms, risks, and benefits for students. This Article contends that the constitutional framework applied to single-sex schools should be systematically modified to recognize the different potential harms, risks, and benefits of these single-sex schools in a manner that will create optimal conditions for creating single-sex public schools. The proposed modifications address …

Fun With Dick And Jane And Lawrence: A Primer On Education Privacy As Constitutional Liberty, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Ferpa And The Immigration And Naturalization Service: A Guide For University Counsel On Federal Rules For Collecting, Maintaining And Releasing Information About Foreign Students, Laura A.W. Khatcheressian

Law Faculty Publications

The devastating terrorist attacks against the United States on September 11, 2001, destroyed the World Trade Center in New York City, badly damaged the Pentagon, and took the lives of thousands of individuals. As more details became available about the terrorists who hijacked four U.S. planes to carry out these deadly attacks, universities around the U.S. struggled with the news that several of the hijackers had entered the U.S. on, or had later applied for, "student" visas. University officials began to grapple with new questions presented by these attacks: What responsibilities do the universities have to report foreign students who …