Education Law Commons^™

Keynote Remarks: Re-Tooling Law And Legal Education For Food System Reform: Food Law And Policy In Practice, Emily M. Broad Leib

Seattle University Law Review

Thank you for the opportunity to be with you today and to take part in this symposium on the important role law schools and lawyers can play in changing our food system. Food preferences and food choices are incredibly personal, but the way we produce and consume food, and its impacts on our environment, public health, and the safety of ourselves and others, make it a pressing societal issue as well.

Faculty Insights On Educational Diversity, Meera E. Deo

Fordham Law Review

    Twice in the past two years, the U.S. Supreme Court has approved educational diversity as a compelling state interest that justifies the use of race in higher education admissions decisions. Nevertheless, it remains on somewhat shaky ground. Over the past decade, the Court has emphasized that its acceptance of diversity stems from the expectation that a diverse student body will enhance the classroom environment, with students drawing on their diverse backgrounds during classroom conversations that ultimately bring the law to life. Yet, the Court provides no support for its assumption that admitting and enrolling diverse students actually result in these …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

Exhibits To Accompany Testimony & Statement Of Dean Hill Rivkin Before The Senate Judiciary Committee (21 April 2015), Dean H. Rivkin

College of Law Faculty Scholarship

Exhibits to accompany testimony and statement-of-record of Professor Dean Hill Rivkin (The University of Tennessee College of Law), as submitted on April 21, 2015, before a hearing convened by the U.S. Senate Committee on the Judiciary: “Improving Accountability and Oversight of Juvenile Justice Grants.”

Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez

Chicago-Kent Law Review

This Article discusses how traditional teaching practices can reinforce systemic discrimination, exclusion, subordination and oppression within the classroom in particular detriment to women and students of color. The Article traces the discussions about pedagogy in Outcrit literature and proposes that Outcrit scholars teaching techniques within the classroom should reflect anti-subordination praxis in teaching. Drawing from the work of Paulo Freire, Derrick Bell and others, the Article proposes that teaching from an anti-subordination perspective requires a praxis of collaborative, non-hierarchical teaching that calls for an epistemological shift. A pedagogy that frees the student to think independently and leads to an experience …

The Mismatch Myth In U.S. Higher Education: A Synthesis Of The Empirical Evidence At The Law School And Undergraduate Levels, William C. Kidder, Richard O. Lempert

Book Chapters

Opponents of affirmative action in higher education commonly cite two principles to justify their opposition. One is that admissions to institutions of higher education should be based on "merit," which is often treated by critics of affirmative action as consisting of little more than test score results and high school or undergraduate grades. The second is the legal and moral imperative of not making consequential decisions based on race. We shall not address these principles except to note that others have shown that they do not make the case against affirmative action (Carbado & Harris 2008, Shultz & Zedeck 2011, …

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

Publications

Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

"Law Is Coercion": Revisiting Judicial Power To Provide Equality In Public Education, José F. Anderson

All Faculty Scholarship

This article is an attempt to start a conversation about where we find ourselves in the plight to help our most challenged public schools. It is not intended to be a comprehensive solution to the problem, but rather a hard look at how, after decades of many efforts, we are further away from the equal education contemplated by the United States Supreme Court's historic decision in Brown v. Board of Education. This article does not desire to simply cast blame for the failures of our children, but to send a reminder that, as Frederick Douglass would say, we can hardly …

Do Away With Race-Based Annual Academic Data, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

In a commentary, SMU Associate Professor of Law and former Nominated Member of Parliament Eugene Tan urged for the Ministry of Education to stop publishing race-based academic data for national examinations. This includes the Primary School Leaving Examination, and the GCE O- and A-Levels. He felt that at a time when the Chinese, Malay, Indian and Others racial classification is less relevant, with more inter-racial and international marriages, we must do away with racial stereotypes or notions of cultural deficits, because they undermine the very students we seek to help.

Intra-Group Diversity In Education: What If Abigail Fisher Were An Immigrant . . ., Dagmar Rita Myslinska

Pace Law Review

In Part I, this Article briefly describes some aspects of white immigrants’ educational experience (including extracurricular involvement and parental roles), exposing how it reflects immigrants’ lack of access to the cultural capital of native-born whites. The Article exposes some unique challenges faced by Caucasian immigrants in high school, during the college application process, and in taking advantage of college opportunities that amplify social benefits. These experiences are contrasted with those of American-born students who benefit from their families’ access to social capital that enables them to take advantage of its replication in college.

Part II addresses how some of the …

The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman

University of Michigan Journal of Law Reform

The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

University of Michigan Journal of Law Reform

Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Opt-Out Education: School Choice As Racial Subordination, Osamudia R. James

Articles

Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian

University of Michigan Journal of Law Reform

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

White Like Me: The Negative Impact Of The Diversity Rationale On White Identity Formation, Osamudia R. James

Articles

In several cases addressing the constitutionality of affirmative action admissions policies, the Supreme Court has recognized a compelling state interest in schools with diverse student populations. According to the Court and affirmative action proponents, the pursuit of diversity does not only benefit minority students who gain expanded access to elite institutions through affirmative action. Rather, diversity also benefits white students who grow through encounters with minority students, it contributes to social and intellectual life on campus, and it serves society at large by aiding the development of citizens equipped for employment and citizenship in an increasingly diverse country.

Recent scholarship …

The Case Of Dixon V. Alabama: From Civil Rights To Students' Rights And Back Again, Philip Lee

Journal Articles

On February 25, 1960, African American students from Alabama State College participated in a sit-in at a segregated lunch grill at the Montgomery County Courthouse. The lunch grill refused to serve the students and ordered them to leave. The students left and went to the courthouse corridor, where they remained for an hour before going back to campus.

When Alabama State College learned of the students’ actions, it summarily expelled them without notice or hearing. In expelling the students, the college relied on Alabama State Board of Education regulations that allowed it to expel students for “conduct unbecoming a student …

The End Of Indeterminacy In Affirmative Action, Carla Pratt

Faculty Articles

After the Supreme Court's decision in Fisher v. UT Austin, the stage has been set for judges to demand more specificity in the articulation of the protected diversity interest. Gone are the days when institutions of higher education could rely on the abstract concept of diversity to support efforts to enroll a diverse student body. Now higher education institutions will need to give serious thought to how they define the sought after diversity interest and how racial diversity improves educational outcomes and enhances the education that is delivered.

States Taking Charge: Examining The Role Of Race, Party Affliation, And Preemption In The Development Of In-State Tuition Laws For Undocumented Immigrant Students , Stephen L. Nelson, Jennifer L. Robinson, Kara Hetrick Glaubitz

Michigan Journal of Race and Law

Part I of this Article details both the legislative and legal history of undocumented immigrants’ access to education in the United States. Part II then describes the current U.S. state laws in effect regarding in-state tuition for undocumented immigrant students at state-funded colleges and universities. Part III further explores the development of laws and policies with a keen focus on potential correlations between (1) the racial composition of state legislatures and the passage of in-state tuition policies; (2) the race of governors and the passage of in-state tuition policies; (3) partisan composition of state legislatures and the passage of in-state …

Zero Tolerance Policies: Criminalizing Childhood And Disenfranchising The Next Generation Of Citizens, S. David Mitchell

Faculty Publications

A juvenile adjudication of guilt has far more drastic consequences than existed just ten years ago ... Some of these consequences may not be apparent for a number of years, but their possibility should be anticipated, fully considered, and planned for, wherever possible. Under zero tolerance, students are suspended, expelled, or referred to juvenile authorities or some combination thereof for specified offenses. Zero tolerance policies punish students harshly regardless of the severity of the infraction, the existence of mitigating circumstances, or the context in which the conduct occurred. Part II discusses the origin and evolution of zero tolerance policies, as …

Brown's Dream Deferred: Lessons On Democracy And Identity From Cooper V. Arron To The School-To-Prison Pipeline, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Paradox Of Race-Conscious Labels, Leslie Y. Garfield

Elisabeth Haub School of Law Faculty Publications

Labeling affirmative action laws with integrity is a hopelessly paradoxical pursuit. This article illustrates the consequences of such a pursuit. Section I traces the origins of the Top Ten Percent Law, which arose as a legislative protest to the Fifth Circuit's rejection of the use of race in admissions decisions. This section provides an in-depth understanding of the Top Ten Percent Law and concludes with a detailed analysis of the Fisher decision. Section II supplies an explanation of the majority's conclusion to treat the Top Ten Percent Law as race-neutral and provides detailed support for Justice Ginsburg's affirmation that the …

Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson

University of Michigan Journal of Law Reform

Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Pimping Brown V. Board Of Education: The Destruction Of African-American Schools And The Mis-Education Of African-American Students, Irving Joyner

North Carolina Central Law Review

No abstract provided.

A Thought Experiment: Brown V. Board Of Education Of Topeka, Kansas, Louis Michael Seidman

The Modern American

No abstract provided.

Doing Affirmative Action, Stephen Clowney

Michigan Law Review First Impressions

Sometime this year the Supreme Court will announce its holding in Fisher v. University of Texas at Austin, a case that asks whether colleges may continue to consider race when making admissions decisions. Most Court watchers predict that the five conservative justices will vote to curtail the use of racial preferences. Lost in the weighty discussions about the scope of the Equal Protection Clause and the meaning of the Civil Rights struggle is any clear and concise explanation of how selective colleges actually make admissions decisions and how they work to fulfill the goals of affirmative action. This Essay seeks …

Affirmative Action, Justice Kennedy, And The Virtues Of The Middle Ground, Allen K. Rostron

Faculty Works

When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas, attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making. Though he is often decisive in the sense of casting …

How I Rode The Bus To Become A Professor At The University Of Denver Sturm College Of Law; Reflections On Keyes's Legacy For The Metropolitan, Post-Racial, And Multiracial Twenty-First Century, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart

Publications

Each time that the continued legality of race-conscious affirmative action is threatened, colleges and universities must confront the possibility of dramatically changing their admissions policies. Fisher v. University of Texas, which the Supreme Court will hear this year, presents just such a moment. In previous years when affirmative action has been outlawed by ballot initiative in specific states or when the Court has seemed poised to reject it entirely, there have been calls for replacing race-conscious admissions with class-based affirmative action. Supporters of race-conscious affirmative action have typically criticized the class-based alternative as ineffective at maintaining racial diversity. This …