Education Law Commons^™

Education's Elusive Future, Storied Past, And The Fundamental Inequities Between, Derek W. Black

Georgia Law Review

During the past half-century, education has experienced
a broad expansion of civil rights. Where no rights
previously existed, students now have the right to be free
from discrimination based on race, language status,
disability, wealth, gender, and homelessness. The full
development of these rights, along with substantive
educational improvements for disadvantaged students,
however, has recently stalled. For instance, mandatory
school desegregation, which laid the political and
theoretical foundation for other movements, is nearly non-
existent today. Other movements fare better than
desegregation, but nonetheless face serious limitations.
The overall trend of these various movements raises
serious questions about the prospects …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of …

Middle-Income Peers As Educational Resources And The Constitutional Right To Equal Access, Derek W. Black

Faculty Publications

Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. Since the effective end of mandatory desegregation, advocates have lacked legal tools to address it. As an alternative, some advocates and scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. Thus, all that has remained for students in poor and minority schools is the hope that school finance litigation could direct sufficient resources to mitigate their plight. This Article offers another solution. …

The Lawmaking Family, Noa Ben-Asher

Faculty Publications

Increasingly there are conflicts over families trying to “opt out” of various legal structures, especially public school education. Examples of opting-out conflicts include a father seeking to exempt his son from health education classes; a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality; and a vegetarian student wishing to opt out of in-class frog dissection. The Article shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized by the Supreme Court in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In …

Multilingualism And Multiculturalism: Transatlantic Discourses On Language, Identity, And Immigrant Schooling, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In September 2010, an eye-catching article appeared on the front page of the New York Times “Arts” section. The headline read, “Cultures United to Honor Separatism.” Basque and Catalan nationalists, Sinn Fein leaders, and others were convening on the island of Corsica, not to chart out war strategies, as might have been expected, but rather to discuss cultural politics. As time would tell, pitched battles over sovereignty and independence seemed to be yielding to equally passionate calls for linguistic and cultural recognition. Facing the pressure of English as the global lingua franca, historically militant groups were placing their …

Acting For The Left Behind: How The Native Class Act Could Close The Gaps In American Indian Education, Aaron J. Stewart

American Indian Law Review

No abstract provided.

Catholic Schools, Charter Schools, And Urban Neighborhoods, Margaret F. Brinig, Nicole Stelle Garnett

Journal Articles

This paper addresses implications for urban neighborhoods of two dramatic shifts in the American educational landscape: (1) the rapid disappearance of Catholic schools from urban neighborhoods, and (2) the rise of charter schools. In previous studies, we linked Catholic school closures to increased disorder and crime, and decreased social cohesion, in Chicago neighborhoods. This paper turns to two questions unanswered in our previous investigations. First, because we focused exclusively on school closures in our previous studies, we were uncertain whether our results reflected the work that open Catholic schools do as neighborhood institutions or whether we were finding a “loss …

Minnie Liddell's Forty-Year Quest For Quality Public Education Remains A Dream Deferred, Kimberly Jade Norwood

Scholarship@WashULaw

This Article is a historic account of the hopes and dreams that a mother had for her children and her efforts to make those hopes and dreams come true. The mother, Minnie Liddell, never imagined, when she first became a mom in 1959, or years later after the birth of her fifth child, or even after she filed a lawsuit against a city school district, that she would become a pioneer and icon in the school desegregation history of St. Louis, Missouri. She really only wanted a quality public education for her children, for black children, for all children. This …

Burying Our Heads In The Sand: Lack Of Knowledge, Knowledge Avoidance And The Persistent Problem Of Campus Peer Sexual Violence, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

This article discusses why two laws that seek to prevent and end sexual violence between students on college campuses, Title IX of the Educational Amendments of 1972 ("Title IX") and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act"), are failing to fulfill that goal and how these legal regimes can be improved to reach this goal. It explicates how Title IX and the Clery Act ignore or exacerbate a series of "information problems" that create incentives for schools to "bury their heads in the sand" with regard to campus peer sexual violence. These …

Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Hats Off To Claire Flom: Education And The Importance Of Being Involved , Judith S. Kaye

Fordham Urban Law Journal

This transcript of the Claire Flom lecture covers primarily two themes—the importance of early intervention, and the importance of people getting involved with the public school system and in their children - and other children's education The lecture applies these concepts first to children with special education needs and then to adolescents, kids at the brink of adulthood. The article argues that early intervening early is key to both populations and that neglected learning difficulties only worsen with the passage of time.

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede

Faculty Scholarship

“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the undesired result …

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Law Faculty Scholarly Articles

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that …

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …

Can Allocation By Sortition Resolve The Connecticut Education-Financing Impasse?, A. E. Rodriguez, Lesley Denardis

Political Science & Global Affairs Faculty Publications

It has been over 40 years since Connecticut amended its Constitution to ensure citizens a right to a free public education. Despite the constitutionally prescribed right, dramatic inequities in educational conditions continued to characterize the state's K-12 educational system, especially between suburban/rural white and urban minority school districts. In the 1970s plaintiffs challenged the prevailing mechanism for allocating education funds with a host of court cases that tackled the thorny question of how much financial responsibility the state should assume to equalize the spending disparities between school districts. Prodded by court decisions, many formulas and approaches have been proposed by …

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto A. Imoukuede

Journal Publications

This Article explains why there is a fundamental duty for the government to provide public education under the U.S. Constitution. Numerous scholars and public officials have written on the need to overrule San Antonio v. Rodriguez or adopt alternative approaches to recognizing a right to public education either judicially or by way of constitutional amendment. This Article identifies a consistent and systemic reluctance by the Court to meaningfully enforce positive rights, which are the duties that the government owes to the people. In doing so, it explores the consistent recognition throughout American history that education is a fundamental duty of …

Profiting From Not For Profit: Toward Adequate Humanities Instruction In American K-12 Schools, Eli Savit

Michigan Law Review

Martha Nussbaum' describes Not For Profit: Why Democracy Needs the Humanities-her paean to a humanities-rich education-as a "manifesto, not an empirical study" (p. 121). Drawing on contemporary psychological research and classic pedagogical theories, Nussbaum convincingly argues that scholastic instruction in the humanities is a critical tool in shaping democratic citizens. Nussbaum shows how the study of subjects like literature, history, philosophy, and art helps students build essential democratic capacities like empathy and critical thought. Through myriad examples and anecdotes, Not For Profit sketches an appealing vision of what an ideal education should be in a democracy.

Immigrant Education And The Promise Of Integrative Egalitarianism, Victor C. Romero

Faculty Scholarship

Although not an equal protection case, Martinez v. Regents of the University of California challenges us to grapple with the Supreme Court’s post-Brown commitment to equal opportunity within the context of immigrant higher education. Sadly, Brown’s progeny from Bakke to Parents Involved reveals the cost of embracing a color-blind constitutionalism unmoored from a fundamental commitment to vigilantly combat subordination and dismantle unearned privilege. More optimistically, the Supreme Court’s gay rights jurisprudence developed in Romer v. Evans and Lawrence v. Texas provides insights into how a conservative court can accurately distinguish irrational discrimination from democratic deliberation, a lesson that might help …

How Can The Rural Energy Poor Obtain Appropriate Sustainable Energy Technologies?, Michael Waggoner

Publications

Solutions to a current serious problem for the rural energy poor might best be found at least in part in older practices.

The problem comes from cooking over open fires, impairing the health of the cook and of others in her family, using fuel so inefficiently as to threaten forests, and releasing soot that contributes to global warming. Small, cheap, reliable cooking stoves could address these issues, improving health by reducing smoke and exhausting it through a chimney and thus away from the cook, using fuel more efficiently so that less needs to be gathered, and more completely burning the …

Empowering Special Education Clients Through Cross-Disciplinary Collaboration: Lessons Learned For Current Clients And Future Professionals, Patricia E. Roberts, Kelly Whalon

Faculty Publications

No abstract provided.

Combating Cyberbullying: Emphasizing Education Over Criminalization, Jessica P. Meredith

Federal Communications Law Journal

The advent of new technologies such as social media websites like MySpace and Facebook have increased the methods through which bullying takes form and causes harm to children and teenagers. As the public has become more aware of the dangers of this new form of bullying, cyberbullying, legislators have responded by proposing legislation to criminalize this type of behavior with varying degrees of success. This Note explains the problem of cyberbullying and evaluates state and federal legislative efforts to combat the issue through criminalization, then argues that prevention through education will be the most effective solution. Unlike criminalization, educational initiatives …

Linguistic Profiling In Education: How Accent Bias Denies Equal Educational Opportunities To Students Of Color., William Y. Chin

The Scholar: St. Mary's Law Review on Race and Social Justice

desegregation, education civil rights, Meagan Field, Jennifer Solak, William Chin, Monica Aguon, No Child Left Behind, Minority Student, The Scholar: St. Mary’s Law Review on Minority Issues, Limited English Proficient (LEP).

From Equity To Adequacy: Evolving Legal Theories In School Finance Litigation: The Case Of Connecticut, Lesley A. Denardis

Political Science & Global Affairs Faculty Publications

Since the landmark school finance decision Serrano v. Priest (1971) ruled that California’s reliance on the property tax to finance public schools violated equal protection provisions in state and federal constitutions, a wave of school finance litigation swept the United States. Connecticut followed with Horton v. Meskill (1977) and most recently with CCJEF v. Rell (2005). The Connecticut State Supreme Court has been a key actor in the policy making process concerning school finance reform in Connecticut. This study will trace the history of school finance litigation in Connecticut and the evolving legal theories used to undergird major court cases. …

The Right To Education: A Multi-Faceted Strategy For Litigating Before The Inter-American Commission On Human Rights, Marselha Gonçalves Margerin

Human Rights Brief

No abstract provided.

The Politics Of Supplementing Failure Under No Child Left Behind: How Both Left And Right Are Forcing Low-Income Children To Choose Between A Deficient Education And Working Overtime, Monica Teixeira De Sousa

Nevada Law Journal

This Article analyzes NCLB's Supplemental Educational Services provision and exposes its shortcomings. Part I introduces the voluntary overtime work approach of SES and highlights its flaws and limitations. Research reveals that the voluntary overtime work model is designed for the exceptional student and does not provide meaningful opportunities to the majority of students in under-performing schools. Part II presents the legal and political context in which policymakers created SES and shows how they failed to assess realistically the many challenges facing students today. In particular, the legislative history reveals that ideology--a blend of free-market and “pull yourself up by your …

Human Capital And Transfer Taxation, Kerry A. Ryan

All Faculty Scholarship

This article addresses the question of whether education and healthcare transfers should be included in the federal gift tax base. It initially frames the issue in two ways: (1) through the lens of a proposal by the American Law Institute to exempt all “transfers for consumption” from gift taxation, and (2) within the context of a debate among economists about whether such expenditures should be included in the definition of “intergenerational transfers” for purposes of determining the total share of such transfers in U.S. accumulated wealth. Finding the first lens unsatisfactory on its own doctrinal terms and the second lens …

Introduction: Challenging The School-To-Prison Pipeline, Deborah N. Archer

NYLS Law Review

No abstract provided.

Affordable Private Education And The Middle Class City, Nicole Stelle Garnett

Journal Articles

This Essay, which was prepared for a University of Chicago Law School’s symposium on “Rethinking the Local Government Toolkit,” argues that affordable private schools serve an important urban-development function: They partially unbundle the residential and educational decisions of families with children. Thus, state and local officials hoping to make our make central city neighborhoods attractive places to raise children should consider employing a familiar urban development tool - tax incentives - to make quality private schools more financially accessible to middle-income families. The Essay proceeds in three parts. Part I builds the case for a middle class city. Part II …

The Parent As (Mere) Educational Trustee: Whose Education Is It, Anyway?, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is two-fold. First, the Article argues that the parent’s right to educate his or her children is strictly circumscribed by the parent’s duty to ensure that children learn habits of critical reasoning and reflection. The law has long recognized that the state’s duty to educate children is superior to any parental right. Indeed, the “parentalist” position to the contrary rests on an inflation of rights that is, in fact, a radical departure from longstanding legal norms. Indeed, at common law the parent had “a sacred right” to the custody of his child, and the parent’s …