Education Law Commons^™

The "Other" Market, Cody Jacobs

Faculty Scholarship

The hiring market for tenure-track non–legal writing positions is a world unto itself with its own lingo (i.e., “meat market” and “FAR form”), its own unwritten rules (i.e., “Do not have two first-year courses in your preferred teaching package.”), and carefully calibrated expectations for candidates and schools with respect to the process and timing of hiring. These norms and expectations are disseminated to the participants in this market through a relatively well-established set of feeder fellowships, visiting assistant professor programs, elite law schools, blogs, and academic literature on the subject.

But there is another market that goes on every year …

Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis

Faculty Scholarship

Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in …

Protecting Homeschoolers: A Proposal To Protect Homeschooled Children In North Carolina From Educational Neglect, Jane R. Wettach

Faculty Scholarship

No abstract provided.

Covid-19'S Impact On Students With Disabilities In Under-Resourced School Districts, Crystal Grant

Faculty Scholarship

This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. These solutions include an immediate advancement of funds to aid states …

The New Data Of Student Debt, Christopher K. Odinet

Faculty Scholarship

Where you go to college and what you choose to study has always been important, but, with the help of data science, it may now determine whether you get a student loan. Silicon Valley is increasingly setting its sights on student lending. Financial technology (“fintech”) firms such as SoFi, CommonBond, and Upstart are ever-expanding their online lending activities to help students finance or refinance educational expenses. These online companies are using a wide array of alternative, education-based data points—ranging from applicants’ chosen majors, assessment scores, the college or university they attend, job history, and cohort default rates—to determine creditworthiness. Fintech …

Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short

Faculty Scholarship

merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a …

Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran

Faculty Scholarship

The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …

Tenure Matters: The Anatomy Of Tenure And Academic Survival In American Legal Education, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias

Faculty Scholarship

Thank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to …

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, …

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Faculty Scholarship

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising …

Taming Title Ix Tensions, Naomi M. Mann

Faculty Scholarship

The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through …

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Faculty Scholarship

More than ten years have passed since the United States Supreme Court last addressed school desegregation. In its abbreviated tenure in the decades following Brown v. Board of Education, school desegregation was successful in many respects. Longstanding policies of state-sponsored educational apartheid eventually ended. A great many school buildings became more diverse. Countless students of color gained access to improved academic opportunities and better life outcomes. A consensus formed around the positive impacts that desegregation could have on both students of color and white students. When courts retreated from upholding desegregation policies, many communities developed their own voluntary plans, some …

Higher Education As A Human Right, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins

Faculty Scholarship

No abstract provided.

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez

Faculty Scholarship

Panel moderated by Professor Olatunde Johnson, featuring Professors Monica Bell, Tanya K. Hernández, Solangel Maldonado, and Chantal Thomas. Introduced by Elise Lopez.

Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg

Faculty Scholarship

“If you’re afraid to offend, you can’t be honest.”

“If you offend me, I can’t hear what you’re trying to tell me.”

—overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …

Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao

Faculty Scholarship

No abstract provided.

The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan

Faculty Scholarship

In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …

Every Dollar Counts: In Defense Of The Obama Department Of Education's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa

Faculty Scholarship

Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. In 2011, a study by the U.S. Department of Education discovered that nationwide, more than forty percent of schools eligible for Title I funding based on their high-poverty status receive less state and local funding for instructional and other personnel costs than non-Title I schools …

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 …

Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman

Faculty Scholarship

In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form …

Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis

Faculty Scholarship

As a matter of civil rights, Title IX mandates that federally funded educational institutions address reports of sexual assault. Often disciplined-student plaintiffs argue unsuccessfully that the college or university’s decision to discipline them is tainted by “reverse” sex discrimination. This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. It provides a historical context for Title IX’s application to sexual assault on campuses and the requirements the law imposes on the educational institutions. Next, it describes the role Title IX plays in disciplined-student …

Paying For Attendance: Using Incentives To Combat Chronic Absenteeism, Madeline H. Meth

Faculty Scholarship

Students with poor attendance miss opportunities to learn social and academic skills.' They perform worse on achievement tests. ² They are also less likely to graduate.³ A student who misses school in as early as the first grade is significantly more likely to eventually drop out of high school.⁴ Individuals who drop out see a significant loss in earnings and are more likely to be jobless; women who drop out make about 60% of what female high-school graduates earn, and men who do not graduate lose approximately $9,564 in annual wages. Because high-school dropouts earn less than those …

City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran

Faculty Scholarship

When we think about the democratic promise of higher education, we often think of public universities. Consider, for example, the civic-minded reflections of Gordon Davies, the former Chancellor of the University of Virginia, who concluded in 1997 that “[e]ducation is not a trivial business, a private good, or a discretionary expenditure. It is a deeply ethical undertaking at which we must succeed if we are to survive as a free people.” This lofty vision has since been undermined by persistent cuts in funding for state universities across the nation. In 2007, James Duderstadt, the former president of the University of …

Lotteries As A Voluntary And "Painless" Tax In American Gaming Law And The Prospect Of Creating A Federal Lottery To Reduce The Federal Deficit In The Era Of Billion Dollar Jackpots, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Democratizing Higher Education: Defending And Extending Income-Based Repayment Programs, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.