Education Law Commons^™

Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault

Faculty Scholarship

The law of school finance reform is conventionally described as consisting of three waves, each associated with a distinctive legal theory – a first wave based on federal equal protection arguments, a second equity wave based on state equal protection clauses, and a third adequacy wave based on state constitutional education articles. The asserted shift from equity to adequacy has been credited with the increasing success of school finance reform plaintiffs.

The wave metaphor and especially the differences between the second and third waves, however, have been sharply overstated – temporally, textually, in terms of litigation success, and as a …

Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …

With Strings Attached: The Limits On Local Control, Richard Briffault

Faculty Scholarship

In a December 2003 decision, a Colorado trial court judge invalidated the state's new school voucher program. The decision was unusual in that the court relied not on traditional separation-of-church-and-state concerns, but instead on a provision of the Colorado state constitution that vests control over public education in local school boards. The court held that by failing to give local school boards any" input whatsoever into the instruction to be offered by the private schools" that accepted voucher students, the state had violated the constitutional provision that grants local boards "control of instruction in the public schools of their respective …

A Comment On Grutter And Gratz V. Bollinger, Lee C. Bollinger

Faculty Scholarship

Now that the Supreme Court has definitively resolved (at least for a generation) the issue of the constitutionality of affirmative action in American higher education, thereby continuing without major adjustment what has been the practice in our selective colleges and universities for more or less the last thirty years, it is easy to forget how different the United States would have looked in the years ahead if only one vote had shifted to the dissenting side. Just how precipitous and long-lasting the decline in racial and ethnic diversity would have been is a complicated matter, but that it would have …

A Civics Action: Interpreting Adequacy In State Constitutions Education Clauses, Joshua Gupta-Kagan

Faculty Scholarship

The antipathy of federal and state courts toward equal protection arguments in lawsuits challenging the public funding of education have forced education activists to search for alternative doctrinal hooks as they continue to seek reform in states' funding and management of schools. These activists have turned to state constitutions' education clauses, which impose duties on state governments to provide an "adequate" education for all children in the state. However, the art of defining and measuring an "adequate" education has advanced little beyond its state in 1973, when Justice Thurgood Marshall found the term unhelpful. In this Note, Josh Kagan surveys …

The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel

Faculty Scholarship

It is a pleasure to address such well-informed, insightful and well-intentioned responses to our Article. Intellectual predispositions and differing assessments of the prospects of reform aside, it is striking that so many participants have firsthand experience of the new model school, the new politics in all their mystery, and even non-court-centric judicial review. It is clear that something is afoot, and not just in academic circles, when observers as different as Diane Ravitch, the critic of Deweyan latitudinarianism, and Gordon Whitman, the community organizer, are both surprised to discover that standardized testing can go hand in hand with individualized education …

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic …

A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel

Faculty Scholarship

The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, …

School Vouchers And Religious Liberty: Seven Questions From Madison's Memorial And Remonstrance, Vincent A. Blasi

Faculty Scholarship

In the immediate aftermath of the Revolutionary War, many upstanding citizens of the fledgling state of Virginia were not pleased. They were, in fact, appalled by the decline they perceived in the state of public morals. Newspaper editorials, sermons, and speeches in public assemblies resounded with references to the recent upsurge in gambling, whoring, cockfighting, and public drunkenness. That such departures from the straight and narrow are not uncommon in postwar periods, following all the social dislocations of military mobilization, was no consolation to Virginians eager to show a doubting world that government by the people could work.

The root …

Teaching About Religion In Public Schools, Kent Greenawalt

Faculty Scholarship

Two of the twentieth century's most controversial Supreme Court decisions held that public schools could not sponsor devotional prayer and Bible reading as part of their educational program. Yet, whether to begin school with a few minutes of devotional practice matters far less than what schools teach about religion, one of the most nettlesome issues of church-state relations in a liberal democracy. This question has received comparatively little attention from constitutional lawyers, because the Supreme Court has declared that teaching about religion is acceptable and has not addressed challenges to programs educators have labeled in this way. Many citizens, of …

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty

Faculty Scholarship

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering …

Separation And Schools, Kent Greenawalt

Faculty Scholarship

In commenting on these rich papers by Michel Troper and Michael McConnell, I first analyze the implications of legal and political theory for religious liberty and separation of church and state. I then turn to underlying premises of modern liberal theory about moral education and tolerance among citizens. Lastly, I concentrate on separation as it affects the schooling of children. Despite Professor Troper's emphasis on the uniqueness of French understanding and history, I was struck by how closely French problems about schooling, and their possible resolutions, resemble those in the United States.

Who's In Control? The Courts, The Legislature And The Public In Colorado's School Finance Debate, Christina D. Ponsa-Kraus, Drew Dunphy

Faculty Scholarship

Colorado's school finance story touches on a number of themes familiar to students of school finance litigation: a struggle between those supporting greater resources and those favoring lower taxes; a shift in focus from equity to adequacy; and the difficulty of fostering an informed, widespread dialogue on school finance given the complexity of the funding system. At the same time, certain factors particular to Colorado – a seeming conflict in the state constitution, a number of strict constitutional amendments, and an unusually strong tradition of local control – have dramatically shaped the state's reform process. With a pending lawsuit seeking …

Foreword, Robert E. Scott

Faculty Scholarship

The Equal Education Under the Law Symposium continues a conversation among legal and educational professionals that seeks to advance and perhaps refocus the rather dramatic debate over the future of public education in our country. The good news for this debate is that we start with a clear consensus on goals. Few, if any, would dissent from the following statement of principle: the future success of this nation depends in large measure on the requirement that every citizen have the chance to share in the country's good fortune, and the key to providing that chance, for all citizens, lies in …

Voice, Not Choice, James S. Liebman

Faculty Scholarship

In John Chubb and Terry Moe's book, choice is hot; voice is not. As influential as their book has become in current policy debates, however, its data and reasoning may support policies the reverse of those that the authors and their "New Paradigm" disciples propose. In this review, voice is hot; choice is not.

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

Foreword, Kimberlé W. Crenshaw

Faculty Scholarship

In 1987, I was honored to write the Foreword for a special issue on the National Black Law Journal. The special issue featured papers on race, racism and democracy written by students in a UCLA seminar that I had tailored to facilitate the production of publishable work by students. The state of legal education for African American students at the time was far from idyllic. Indeed, the Foreword was inspired by a host of events that I had witnessed both as a student and as a colleague that underscored the varied and subtle ways that race continued to marginalize students …

Toward A Race-Conscious Pedagogy In Legal Education, Kimberlé W. Crenshaw

Faculty Scholarship

It is both an honor and a pleasure to write the Foreword for this issue of the National Black Law Journal. This project represents the culmination of a joint effort involving the NBLJ, Dean Susan Westerberg Prager and me. The project grew out of discussions that began in the Spring of 1987 in which we explored various ways that the law school could support the production of publishable student material for the Journal. I initially considered sponsoring interested students in independent research projects; however, a high level of student interest, an obvious overlap between proposed student topics, and my …

The Metamorphosis Of Legal Education Symposium On Legal Education, Peter L. Strauss

Faculty Scholarship

Professor Brook's remarks this morning provide a context for my own. I mean to say a word or two for the classical era. One of the characteristics of legal education over the past half century or so, one that we ought not give up, has been its passion for order in a chaotic world. Striking as it is to say that "a passion for order ill suits a chaotic world," the world has ever been chaotic – and that passion, our principal defense. The question is, with what principles of order do we exercise that passion, to subdue unruly fact. …

Constitutional Limits On Aid To Sectarian Universities, Kent Greenawalt

Faculty Scholarship

Because private colleges and universities have more and more difficulty keeping their heads above water financially, the possibility of government support increasingly is becoming a question of survival. Almost certainly the level of public support for private academic institutions will rise in the future, and any doubts about eligibility for this support are of vital concern for affected universities. The major issue regarding eligibility has been the status of sectarian universities. Given the stringent constitutional limits on government aid to religion, can universities that are connected to churches or are otherwise sectarian receive public assistance?

Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt

Faculty Scholarship

Racial preferences for blacks generate ambivalence in those who care about racial equality and also believe that individuals should be judged "on their own merits." This ambivalence is reflected in divergent "equal protection" values, the value of eliminating barriers to equality imposed on minority groups and that of distributing the burdens and benefits of social life without reference to arbitrary distinctions. It is hardly surprising, therefore, that after Marco DeFunis, Jr. challenged the constitutionality of racial preferences for admission to a state law school, the Supreme Court's resolution of the issue was awaited with intense interest and some trepidation. For …

2-1-1: The 4th Revolution In Legal Education, Michael I. Sovern

Faculty Scholarship

If we were to count the great changes in legal education from Charles Evans Hughes' day to this, we would find ourselves with a short list. The shift from apprenticeship to school was already well begun by the time Mr. Hughes was graduated from the Columbia School of Law in 1884. The case method was a new idea, but it would become the orthodox methodology in a startlingly short time. By the turn of the century, a number of law schools had moved from two- to three-year programs, but two years was still enough for admission to the bar in …

Changing Directions At Columbia, Michael I. Sovern

Faculty Scholarship

Each period in history handles reform in its own way. In the earlier days we placed a heavy emphasis on legal realism. We stressed the need to adapt the learning of other disciplines to legal education and to bring the learning of other disciplines into the law school instructional program. As you know, that is an incomplete revolution. It remains a part of our present concern, but our focus today is different.

Public Support And The Sectarian University, Walter Gellhorn, Kent Greenawalt

Faculty Scholarship

In mid-1968 we undertook to advise Fordham University concerning steps that might be appropriate to establish its eligibility for public assistance. As part of that task we tried to determine the extent to which present law requires official differentiation between Church-related and other institutions of higher learning. Since the University sought a wholly detached consideration of its legal posture, our conclusions in this article represent our best judgment of the present state of the law and its probable development. We have avoided indicating our own personal position on debatable legal and ethical issues.