Law Commons^™

The Charter School Network (Almost) No One Wants, Joni Hersch, Colton Cronin

Vanderbilt Law School Faculty Publications

Publicly funded, independently operated charter schools entered the public sector three decades ago with the promise of innovating public education to better serve students in underperforming schools. Despite limited evidence of improved educational outcomes, charter schools are now an established part of the education system, with around 7,800 charter schools serving more than seven percent of public, school students.

Although charter schools have long been associated with the controversial school choice movement, a recent entrant into the charter school arena has created new and urgent concerns. Hillsdale College, through its affiliate Barney Charter School Initiative, has been making escalating inroads …

The Public Right To Education, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education is "the most important function of state and local government" and yet not a "fundamental right or liberty." This Article engages one of constitutional law's most intractable problems by introducing "the public right to education" as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful …

Education Is Speech: Parental Free Speech In Education, Philip A. Hamburger

Faculty Scholarship

Education is speech. This simple point is profoundly important. Yet it rarely gets attention in the First Amendment and education scholarship.

Among the implications are those for public schools. All the states require parents to educate their minor children and at the same time offer parents educational support in the form of state schooling. States thereby press parents to take government educational speech in place of their own. Under both the federal and state speech guarantees, states cannot pressure parents, either directly or through conditions, to give up their own educational speech, let alone substitute state educational speech. This abridges …

The Legal Origins Of Catholic Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s — most especially regulations concerning the provision of contraception and …

Forward Together: Building A Field That Works For Families, Center For Public Research And Leadership

Center for Public Research and Leadership

The coronavirus pandemic revealed the necessity, the complexity, and the tremendous value of building strong ties between schools and families. To ensure continuity of learning, schools were forced to rely heavily on families and caregivers to support learning in the home.

But the conversation around family engagement is not new. The value of family involvement in education has been clear for decades, with strong evidence establishing this engagement as a critical driver of student academic and socioemotional outcomes.

Building on this robust research base, the Carnegie Corporation of New York (CCNY) in 2016 began to explore a strategy of building …

Charting Your Own Path: Anurima Bhargava's Lawyer-Leadership In Action, Davis Polk Leadership Initiative

Davis Polk Leadership Initiative

Anurima Bhargava (CLS ’02) is an accomplished civil rights lawyer who has served as Chief ofthe Educational Opportunities Section of the Civil Rights Division at the U.S. Department ofJustice and Director of the Education Practice at the NAACP Legal Defense Fund. She is theFounder and Director of Anthem of Us, a strategic advisory and consulting firm that promotesdignity and justice in workplaces, schools, and communities, the Chair of the U.S. Commissionon International Religious Freedom, and produces and advises on documentary films.Throughout her career, Anurima has served on numerous task forces and working groups,including the White House Task Force to Prevent …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns

Seattle University Law Review SUpra

No abstract provided.

Resources For Special Education Advocacy, Virginia A. Neisler

Law Librarian Scholarship

The CDC reports that approximately 1 in 6 children in the United States has a developmental disability.1 Certain types of developmental disabilities are becoming rapidly more prevalent, with autism spectrum disorder affecting 1 in 59 children in 2014 (as compared to 1 in 150 as recently as 2002).2 From 1997 to 2008, all incidences of developmental disabilities in children in the United States increased in prevalence by more than 17 percent.3 This represents a significant part of our population and in recent decades has given rise to a complex system of legal rights and protections for developmentally disabled children that …

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

Faculty Scholarship

Entrenched bureaucracies and special-interest politics hamper public education in the United States. In response, school districts and states have recently adopted or promoted reforms designed to release schools from bureaucratic control and empower them to meet strengthened outcome standards. Despite promising results, the reforms have been widely criticized, including by the educationally disadvantaged families they most appear to help.

To explain this paradox, this Article first considers the governance alternatives to bureaucracy that the education reforms adopt. It concludes that the reforms do not adopt the most commonly cited alternatives to bureaucracy — marketization, managerialism, or professionalism/craft — and that …

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

Education Rights And The New Due Process, Areto A. Imoukhuede

Faculty Scholarship

This Article argues for a human dignity-based, due process clause analysis to recognize the fundamental duty of government to provide high quality, public education. Access to public education is a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights.

Tax Credit Scholarship Programs And The Changing Ecology Of Public Education, Hillel Y. Levin

Scholarly Works

The traditional model of public education continues to be challenged by advocates of school choice. Typically associated with charter schools, magnet schools, and tuition voucher programs, these advocates have recently introduced a new school choice plan, namely tax credit scholarship programs. More than a dozen states have adopted such programs, and hundreds of millions of dollars are now diverted each year from public programs to private schools. These programs are poorly understood and under-studied by legal scholars. This Article assesses the place of these programs within the ecology of public education, considers the fundamentally different approaches states have taken to …

Safe To Drive? Police Powers Of Search And Seizure In The Vehicular Context, Mark Rucci

Honors College

Since their creation, automobiles have become a central facet of the American culture and psyche. As status symbols and modes of transportation their importance cannot be overstated. Americans love their cars, and the average citizen believes that he or she has legitimate privacy interests in his or her vehicle. But is this the case? For decades, The Court has struggled to balance 4th Amendment privacy rights with effective police procedure, and has thus handed down dozens of rulings on the topic, many of which often seem disparate and contradictory. In the face of such confusion, the Court’s answer has almost …

The Unfinished Journey - Education, Equality And Martin Luther King, Jr., Revisited, Taunya Lovell Banks

Faculty Scholarship

An educated society is important to the survival of a democracy, a sentiment echoed by the Supreme Court in Brown v. Board of Education. Today most commentators concede that the implementation of Brown was a failure and that over the years there has been retrenchment. Although America’s schools are no longer racially segregated by law, a substantial percentage of school children are consigned to racially isolated schools. While commentators continue to argue for racially integrated schools, this article argues that racial integration alone is insufficient--schools must receive adequate financial resources and be even more diverse socio-economically to adequately prepare America’s …

Has The Roberts Court Plurality's Colorblind Rhetoric Finally Broken Brown's Promise?, Phoebe A. Haddon

Faculty Scholarship

This Essay examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education. By comparing efforts to promote educational equality from the Keyes era through today, this Essay asserts that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause. In so doing, courts have impeded the progress of children in Denver and around the country, ignored highly instructive social science studies on the benefits of desegregation, and broken the constitutional promise of equal citizenship. For future policy makers and lawyers to address these persistent problems, legal educators …

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede

Faculty Scholarship

“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the undesired result …

Fate Of The Detroit Public Schools: Governance, Finance And Competition, Peter J. Hammer

Law Faculty Research Publications

No abstract provided.

Dr. King And The Battle For Hearts And Minds, Wendy B. Scott

Faculty Scholarship

In 1954, a unanimous Supreme Court held that laws requiring dual public school systems, separated solely on the basis of race, violated the rights afforded to African American children under the Fourteenth Amendment Equal Protection and Due Process clauses. Brown v. Board of Education marked the beginning of a judicial assault on what the Court in Loving v. Virginia called statutory schemes and state court decisions that served as “an endorsement of the doctrine of White Supremacy.” Both Chief Justice Earl Warren and Dr. King recognized that the practice of White Supremacy did more than keep people separated. In Brown, …

The Juris Doctor Is In: Making Room At Law School For Paraprofessional Partners, Stephen A. Rosenbaum

Publications

The 60th anniversary of the United States’ oldest continuous legal clinic presents an opportunity to reexamine the pedagogical machinery, reshape the curriculum, reflect on advice not taken, and reignite the “movement for change” in (clinical) legal education. The author recommends a modest retooling: Law schools should offer a degree program for non-lawyer advocates. This would capitalize on the many attributes that paralegals bring to the profession.

The author's focus is on how teaching paralegals or lay advocates in law schools can foster less costly non-adversarial dispute resolution, sensitivity to human and cultural aspects of client rapport, and co-education between members …

Equal Access To Public Education: An Examination Of The State Constitutional And Statutory Rights Of Nonpublic Students To Participate In Public School Programs On A Part-Time Basis In North Carolina And Across The Nation, John Plecnik

Law Faculty Articles and Essays

This article argues that private and homeschool students in North Carolina have a state constitutional and statutory right to participate in public school programs on a part-time basis. This right is based on the North Carolina Constitution's explicit acknowledgment of nonpublic education and guarantees of equal protection and equal access to public schools. This right is also based on state statutes that mirror the wording and spirit of the state constitution's guarantees. Since the North Carolina Supreme Court has held that equal access to public schools is a fundamental right under the state constitution, this right can only be restricted …

School Choice And States' Duty To Support Public Schools , Aaron J. Saiger

Faculty Scholarship

The education clauses of state constitutions require states to support schools that not only educate children adequately and equitably, but that are "public" or "common." This Article argues that state-supported school choice can be consistent with these latter requirements. Individual choices, about where to live and whether to educate children privately, have long shaped traditional "public" schooling arrangements. The more direct role choice plays in school voucher and charter programs is also consistent with the requirement that schools be "public." Such programs must ensure, however, that parents' choices among schools are "genuine and independent." This criterion, developed by the U.S. …

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

All Faculty Scholarship

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 …

A Response To Goodwin Liu, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that …

Community Forests: A Perspective, Robert Mccullough

Community-Owned Forests: Possibilities, Experiences, and Lessons Learned (June 16-19)

22 pages.

"Robert McCullough teaches in the University of Vermont Graduate Program in Historic Preservation. He wrote The Landscape of Community: Communal Forests in New England."

Brown At 50: Reconstructing Brown'S Promise, Taunya Lovell Banks

Faculty Scholarship

Today the measure of equal education for black children often is the racial composition of the school population rather than the quality of education received. Increasingly educational achievement for children of all races is tied to socioeconomic status. Since whites as a group are more affluent than non-whites, race and class tend to get conflated leaving uninformed people to conclude that racial integration alone is the measure of equal educational opportunities for black and other non-white children. Legal scholars writing about equal educational opportunities tend to focus either on ways to achieve racial integration or funding equality. Few scholars explore …

Brown V. Board Of Education: Reexamination Of The Desegregation Of Public Education From The Perspective Of The Post-Desegregation Era, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Most Rational Branch: Guinn V. Legislature And The Judiciary's Role As Helpful Arbiter Of Conflict, Jeffrey W. Stempel

Scholarly Works

When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. …

Setting A New Standard For Public Education: Revision 6 Increases The Duty Of The State To Make ‘Adequate Provision’ For Florida Schools, Jon L. Mills, Timothy Mclendon

UF Law Faculty Publications

Among the nine revisions proposed to Florida voters by the Constitution Revision Commission in 1998, Revision 6 fundamentally enhanced Florida's responsibility for public education. Revision 6 amended Article IX, Section 1, of the Florida Constitution, which sets forth the State's duty to provide for public education. Entitled “PUBLIC EDUCATION OF CHILDREN,” Revision 6 makes a declaration of the relative importance of education to the people of Florida, and describes as “paramount” the duty of the state to adequately provide for education. Revision 6 goes on to detail and raise the constitutional standard for what constitutes “adequate provision” for public education, …

The Constitutionality Of Racial Classifications In Public School Admissions, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.