Law Commons^™

The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when …

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

The Story Of San Antonio Independent School Dist. V. Rodriguez: School Finance, Local Control, And Constitutional Limits, Michael Heise

Cornell Law Faculty Publications

Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

The Future Of School Finance Litigation, James E. Ryan

james e. ryan

Just about everyone who writes on the topic agrees that school finance litigation, going forward, will be inextricably linked with the standards and testing movement. The basic idea is that state constitutions can and should be read to protect the right to an adequate education. Academic standards, in turn, define what counts as an adequate education. This leaves to courts in school finance cases the task of determining if schools have sufficient resources to meet the standards -- and thus provide an adequate education. Linking school finance litigation to standards and testing, so everyone also seems to agree, will benefit …

Unpacking The Bar: Of Cut Scores, Competence And Crucibles, Gary S. Rosin

Gary S Rosin

Bar passage rates of first-takers vary widely among both the states and the law schools. State grading practices also vary widely, particularly as to minimum passing scores (“cut scores”) and whether they scale state exam components to the MultiState Bar Exam (“MBE”). The broad ranges of Bar passage rates and of state grading practices call into question the stewardship of the states over admission to the practice of law. This study uses generalized linear modeling, with a logit link function, to isolate the effect on the Bar passage rates of ABA-approved law schools of three factors: (i) the LSAT scores …

Unpacking The Bar: Of Cut Scores, Competence And Crucibles, Gary S. Rosin

Gary S Rosin

Bar passage rates of first-takers vary widely among both the states and the law schools. State grading practices also vary widely, particularly as to minimum passing scores (“cut scores”) and whether they scale state exam components to the MultiState Bar Exam (“MBE”). The broad ranges of Bar passage rates and of state grading practices call into question the stewardship of the states over admission to the practice of law. This study uses generalized linear modeling, with a logit link function, to isolate the effect on the Bar passage rates of ABA-approved law schools of three factors: (i) the LSAT scores …

Using Federal Law To Prescribe Pedagogy: Lessons Learned From The Scientifically-Based Research Requirements Of No Child Left Behind, Kamina A. Pinder

Kamina A Pinder

Abstract Recent data on national student achievement under the Reading First program has tentatively established it as the most successful federal academic program in the existence of federal education law. Reading First is an early reading intervention program with rigid curricular and accountability provisions and is the centerpiece of the No Child Left Behind Act--the most far-reaching federal encroachment on state and local control of education in our nation’s history. In implementing the Reading First statute, U.S. Department of Education officials are alleged to have violated statutory provisions that prohibit Department officials from influencing state and local choice of curricular …

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

Valuing Integration: Lessons From Teachers, Wendy Marie Parker

Wendy Marie Parker

The Supreme Court ended its last term by making unconstitutional a choice Brown v. Board of Education once required – the voluntary, and race conscious, pursuit of integration – to little public outcry. As a society, we continue to find comfort in segregation. This Article argues that this acceptance is wrong, both educationally and constitutionally. It does so through the lens of teacher segregation, a topic all but ignored in the current literature. The first step of this argument is demonstrating, by an original empirical study, the segregation of teachers, thereby proving a more profound school segregation than is generally …

"Simplify You, Classify You": Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Michael L Perlin

Abstract:

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

1. The need to insure that all children receive adequate education

2. The need to insure that the cure is not worse than the illness (that is, …

Law Students Who Learn Differently: A Narrative Case Study Of Three Law Students With Attention Deficit Disorder (Add), Leah M. Christensen

Leah M Christensen

Abstract: More law students than ever before begin law school having been diagnosed with a learning disability. As legal educators, do we have an obligation to expand our teaching methodologies beyond the typical law student? What teaching methodologies work most effectively for law students with learning disabilities? The purpose of this study was to examine the perceptions of law students with Attention Deficit Disorder (ADD) about their law school experience. The case study yielded four themes relating to the social, learning and achievement domains of the students. First, law students with ADD experienced feelings of isolation in law school; second, …

Creeping Judicialization In Special Education Hearings?: An Exploratory Study, Perry A. Zirkel, Zorka Karanxha

Zorka Karanxha

No abstract provided.

Liberal Bias In The Legal Academy: Overstated And Undervalued, Michael Vitiello

Michael Vitiello

Abstract of Liberal Bias in the Legal Academy: Overstated and Undervalued According to the right, universities are hotbeds of radicalism. Critics of universities like David Horowitz have tried to push their agenda through legislation. Until recently, law schools drew little attention. That changed with the publication of a study that appeared in the Georgetown Law Journal; the right now cites the study as evidence that law schools too lean too far to the left. This article examines the debate. First, it examines the Georgetown study and concludes that the study overstates the extent to which law faculties are dominated by …

Butterfly Effects From The Life Of A Little Girl: A Book Review Essay Of Equal Justice: The Courage Of Ada Sipuel, Alfreda S. Daimond

Alfreda S. Diamond

The book review essay critiques Equal Justice: The Courage of Ada Lois Sipuel written by William Bernhardt and Kim Henry. It offers a short essay on the butterfly effects that one life had on the Civil Rights Movement and the quest for equal educational opportunity under the Fourteenth Amendment.

Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme Court, …

Illiberal Education: Constitutional Constraints On Homeschooling, Kimberly Alexandra Yuracko

Kimberly Yuracko

Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over a million children are currently being homeschooled. Although homeschoolers are a diverse group, the homeschooling movement has come to be defined and dominated by its fundamentalist Christian majority many of whom choose to homeschool in order to shield their children from secular influences and liberal values. In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups. Surprisingly, …

The Individuals With Disabilities Education Improvement Act - Why Considering Only One Individual At A Time Creates Untenable Situations For Students And Educators, Megan M. Roberts

Megan M. Roberts

Under the Individuals with Disabilities Education Improvement Act (IDEIA), teachers must modify the classroom environment and lessons to meet the individual needs of each child with a disability. When more than one child with a disability is present in a given classroom, this required individual consideration can be problematic, as the special arrangements for one student may undermine the arrangements for another. Despite the vast growth in the number of students with disabilities and the pressure on schools to comply with the IDEIA requirements, the law has not yet addressed these increasingly frequent situations. This article reviews how the IDEIA …

Creeping Judicialization In Special Education Hearings?: An Exploratory Study, Perry A. Zirkel, Zorka Karanxha, Anastasia D'Angelo

Educational Leadership and Policy Studies Faculty Publications

No abstract provided.

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

Breaking Free Of Chevron’S Constraints: Zuni Public School District 89, Et Al. V. U.S. Department Of Education, Osamudia R. James

Osamudia R. James

Breaking Free of Chevron’s Constraints: Zuni Public School District 89, et al. v. U.S. Department of Education, analyzes the Supreme Court’s latest review of an administrative interpretation under Chevron review, and concludes that the doctrine’s exclusive focus on deciding “who gets to decide” led to a complete failure by the Court to consider the consequences of the agency interpretation at issue. Such a failure renders the Court unprepared to accurately determine whether the agency interpretation is “permissible” under the second prong of Chevron review. As a solution, the article advocates for the replacement of Chevron’s second prong with the more …

The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed

Jennifer Schultz Reed

That since Legal Ethics became a mandatory course in all ABA accredited law schools in 1974, there has been little, if any, perceptible change in the ethics of the legal profession. The absence of significant discernable impact is due to several factors: the failure to define what the profession means and intends by the concept of legal ethics; the inability of law schools to find coherent and successful ways to teach this subject; and the fact that the public generally continues to regard lawyers with little respect and to equate the misdeeds of some with the conduct of most. In …

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting …

School Naming Rights And The First Amendment's Perfect Storm, Joseph Blocher

ExpressO

This Article uses public school naming rights as a lens through which to examine the conflicts between the tempestuous First Amendment categories of government speech, commercial speech, and forum analysis. Courts and scholars have noted the internal conflicts within these three categories, but have not yet explored the conflicts between them. As the growth of school naming rights shows, government sponsorship arrangements collapse the artificial divisions between the categories and demand a better understanding of their interactions. This Article represents a first attempt to bring coherence to these poorly defined and increasingly important areas of First Amendment law.

Gender Equity In College Athletics: Women Coaches As A Case Study, Deborah L. Rhode, Christopher J. Walker

ExpressO

As Title IX celebrates its 35th anniversary, many have noted the positive impact it has had on women sports. But there is also an unintended (and oft-neglected) byproduct: as opportunities for female students have increased, opportunities for female professionals have declined. This Article focuses on the barriers that still confront women in college athletics, particularly those who seek professional positions in coaching and administration. Part I presents a brief overview of Title IX, which makes clear its limitations in securing gender equity. Part II.A discusses the declining representation and lower success rate of women coaches, while Part II.B explores the …

Fuck, Christopher M. Fairman

Christopher M Fairman

No abstract provided.

The Solomon Amendment, Expressive Associations, And Public Employment, Paul Secunda

ExpressO

Rumsfeld v. FAIR apparently concedes that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have …

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

The Law School Pipeline For Students Of Color: What’S Constricting The Flow?, Alex M. Johnson

ExpressO

No abstract provided.