Education Law Commons^™

Affirmative Action Returns To The Supreme Court, Charles J. Russo

Educational Leadership Faculty Publications

One of the most hotly contested issues in education during the past-half century is affirmative action, also known as race-based admissions policies. Supporters defend the practice as one designed to take “affirmative” steps to eliminate the present effects of past discrimination. Critics respond that these policies do not address how granting preferences today remedies past harms, especially because individuals who are passed over when affirmative action is applied played no role in creating past inequities.

Insofar as debate over affirmative action has heated up yet again, this column briefly examines the history of Fisher v. University of Texas II (2016) …

Fair Share Fees, Teacher Unions, And The Supreme Court, Charles J. Russo

Educational Leadership Faculty Publications

Disputes over whether teachers who are not union members must pay for the benefits they receive under their bargaining contracts have been litigated for almost 40 years. Amid conflict over the ability of teachers’ unions to collect fair share fees from nonmembers, the Supreme Court re-entered the controversy in Friedrichs v. California Teachers Association (2016), leaving the door open to future litigation on the status of fair share fees.

Sexual Harassment In Schools, Charles J. Russo

Educational Leadership Faculty Publications

Eliminating sexual harassment in schools continues to be a national concern. In fact, the Supreme Court has resolved three major cases on this topic, and lower courts continue to resolve a steady stream of disputes. The litigation has moved beyond teacher–student and peer–peer claims to include disputes over harassment because of actual or perceived sexual orientation.

Clarence Thomas, Fisher V. University Of Texas, And The Future Of Affirmative Action In Higher Education, Scott D. Gerber

University of Richmond Law Review

No abstract provided.

Supreme Court Docket Preview: Are Changes In The Offing?, Charles J. Russo

Educational Leadership Faculty Publications

During most Supreme Court terms, which begin on the first Monday in October and usually end in late June, the justices accept at least one case focused on education. Two cases before the current Court—Fisher v. University of Texas (2014) and Friedrichs v. California Teachers Association (2014)—have the potential to affect education significantly. Moreover, the sudden death of Supreme Court Justice Antonin Scalia on Saturday, February 13, 2016, may affect these and other cases, especially Fisher, considerably.

Navigating The Unknown: Why Scotus Ought To Again Affirm That Achieving True Diversity In Higher Education Is A Compelling Interest That Satisfies Strict Scrutiny When It Rehears Fisher, Kenrick Frank Roberts

University of the District of Columbia Law Review

On June 29th, 2015, the Supreme Court agreed to once again hear oral arguments in Fisher. This decision is troubling to supporters of Affirmative Action policies because of the Court's indistinguishable motivation for hearing the case a second time. This Note argues that theCourt must continue to allow race-based considerations in higher education admissions policies. Part I takes a look at the beginnings of affirmative action and the effects of past discrimination on the educational attainment of minorities. Part II charts the case law related to affirmative action in higher education. Part III tracks how the meaning of narrowly-tailored has …

Teacher Blogging Redux: Post With Caution, Charles J. Russo, Marcus Heath

Educational Leadership Faculty Publications

In the December 2014 issue of School Business Affairs, this column (Russo 2014) addressed a case from Pennsylvania, Munroe v. Central Bucks School District (2014), that explored the free speech rights of public school teachers who blog on the Internet.

In Munroe, a school board in Pennsylvania dismissed a tenured high school teacher who posted controversial, derogatory remarks about her students and others on her personal blog. The Third Circuit subsequently affirmed that insofar as the blog entries were disruptive to school operations, the teacher’s dismissal did not violate the First Amendment (Munroe 2015).

Munroe highlights the need for school …

Parents Involved And The Struggle For Historical Memory­, Mark Tushnet

Indiana Law Journal

In his Jerome Hall Lecture, Professor Tushnet addresses the legacy of Brown v. Board of Education in the more recent case of Parents Involved in Community Schools v. Seattle School Dist. No. 1 (PICS), which struck down the voluntary school integration programs used in Seattle and Louisville. As Chief Justice Roberts wrote, an important “debate” in the PICS case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory. The politics of memory in PICS is not simply a struggle …

Teacher Unions, The Right-To-Work And Fair Share Agreements, Charles J. Russo

Educational Leadership Faculty Publications

The status of collective bargaining in public education has been in an almost constant state of flux recently. More than 30 states have adopted laws that allow teachers and other public school employees to form unions to bargain collectively with their boards over the terms and conditions of their employment.

Amid debates over their status in public education, the Supreme Court has consistently upheld the right of unions to charge fair-share fees even as it limited their scope. Fair-share or agency fees are based on the premise that insofar as nonmembers benefit from union activities, they should have to pay …

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz

Educational Leadership Faculty Publications

Financial resources for public education are increasingly scarce, and district leaders at all levels continue to struggle to maintain adequate levels of financial resources for their students and programs using complex funding formulas unique to their own jurisdictions. To help educators and education stakeholders better understand the dimensions of paying for public education, we begin with an overview of the historical development of school finance litigation that has shaped the funding mechanisms in most jurisdictions. The next section highlights developments in four representative jurisdictions from the funding formulas currently available in ASBO International’s Funding Formula Library. The library, available on …

The Importance Of Understanding School Law, Charles J. Russo

Educational Leadership Faculty Publications

In an increasingly litigious society wherein parents and their children file a broad spectrum of claims against school systems, it is essential that education leaders have at a minimum a basic understanding of school law.

Before 1954, the Supreme Court addressed only a handful of cases involving K–12 schools and higher education. Brown v. Board of Education of Topeka (1954), perhaps the Supreme Court’s most important education-related decision, ushered in an era of equal educational opportunities and key legislations, such as the Elementary and Secondary Education Act of 1965, now the No Child Left Behind Act (2002); Title IX of …

Section 5: Race, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

An Update On Student Equal Access, Charles J. Russo

Educational Leadership Faculty Publications

In Board of Education of Westside Community Schools v. Mergens (1990), the Supreme Court upheld the Equal Access Act (EAA), a federal law enacted to permit student-organized groups to meet during noninstructional time.

The EAA traces its origins to Widmar v. Vincent (1981). At issue in Widmar was a policy whereby officials at a state university in Missouri made campus facilities generally available to student groups for their activities. Treating religion as a form of free speech, the Supreme Court ruled that insofar as officials allowed more than 100 student groups to use campus facilities, they created a forum for …

A Primer On Federal Statutes Affecting Education, Charles J. Russo

Educational Leadership Faculty Publications

Before the Supreme Court’s monumental decision banning racial segregation in schooling in Brown v. Board of Education (1954), the federal government had little direct involvement in national education policy. Subsequently, the federal government has assumed a major role in setting national education policy.

The federal government’s first post- Brown major legislative enactment, in 1958, was the adoption of the National Defense Education Act (NDEA). Enacted largely in response to the Soviet Union’s launching of Sputnik 1, the NDEA, made federal funds available to education institutions to focus on areas considered critical to national defense, such as mathematics, science, and foreign …

"Friending" Students On Social Media, Charles J. Russo

Educational Leadership Faculty Publications

The use of social media, particularly services such as Facebook and Twitter, has grown exponentially in recent years. Yet to date, relatively little litigation has arisen around the issue of teachers and other educators engaging in questionable or inappropriate use of social media when communicating with students. Even so, parental complaints do arise when teachers share inappropriate communications with students through social media. Consequently, as social networking continues to increase, school business officials and other education leaders should devise policies to help deal with this growing trend.

Given the widespread use of social media, this column examines emerging legal questions …

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 …

Legal Issues Surrounding Christmas In Public Schools, Charles J. Russo, Ralph D. Mawdsley

Educational Leadership Faculty Publications

As the United States becomes increasingly religiously diverse, surprisingly relatively little litigation has occurred over the celebration of religious holy days and holidays in public schools. Although the Supreme Court has addressed Christmas displays on two occasions—in Lynch v. Donnelly (1984) and County of Allegheny v. American Civil Liberties Union (1989)—neither case directly concerned public schools.

The status of holiday celebrations in public schools is a key, if seasonal, issue in light of the importance of religion in the lives of many Americans, as educators seek to teach students to appreciate diversity in all of its manifestations, including religion.

Race-Based Preferences And The Supreme Court, Charles J. Russo

Educational Leadership Faculty Publications

So-called race-conscious remedies ensure that all citizens are considered fairly and equally for employment and education opportunities. The legal status of race-conscious remedies continues to present challenges for education leaders, policymakers, and lawmakers.

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 …

Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, Charles J. Russo

Educational Leadership Faculty Publications

A confluence of litigation at the Supreme Court raises important, yet potentially conflicting, questions about the freedom of employers in religious schools¹ to hire teachers and staff members. On the one hand, in Hosanna-Tabor v. Equal Employment Opportunities Commission,² a unanimous Court reasoned that the ministerial exception granted religious leaders alone the authority to choose who is qualified to teach in their schools. On the other hand, the Court’s rulings on same sex-unions seem to be ushering in a brave new world. For example, in United States v. Windsor,³ the Court struck down the Defense …

Making Room At The Inn: Implications Of 'Christian Legal Society V. Martinez' For Public University Housing Professionals, Michael D. Waggoner, Charles J. Russo

Educational Leadership Faculty Publications

The Supreme Court ruling in Christian Legal Society v. Martinez, its most important case to date on student associational activities, upheld a policy at a public law school in California that required recognized student organizations (or clubs) to admit "all-comers" even if they disagreed with organizational goals and values, rather than retracing the work of Moran and her colleagues, who examined related issues such as religious expression in public areas of residence halls, this article analyzes the potential impact of CLS, since membership in campus organizations clearly overlaps with the kinds of issues that students and housing professionals deal …

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 …

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 …

Update: The Supreme Court And Affirmative Action, Charles J. Russo

Educational Leadership Faculty Publications

Few issues in education have generated more ongoing controversy during the last half-century than affirmative action. Supporters view it as a positive step to eliminate the effects of past discrimination. Conversely, critics speak of race-conscious policies that they maintain create greater problems by failing to address how granting preferences today remedies past inequities.

Although typically more contentious in higher education, affirmative action is the centerpiece of this column because of the impact that race-conscious policies can have on K–12 schools.

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

The Modern American

No abstract provided.

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Michigan Telecommunications & Technology Law Review

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"--the recipients of federal funding--to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships. The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to the …

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 …