Education Law Commons^™

A Response To Goodwin Liu, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that …

Unanimously Wrong, Dale Carpenter

Faculty Journal Articles and Book Chapters

The Supreme Court was unanimously wrong in Rumsfeld v. FAIR. Though rare, it's not the first time the Court has been unanimously wrong. Its most notorious such decisions have come, like FAIR, in cases where the Court conspicuously failed even to appreciate the importance of the constitutional freedoms under attack from legislative majorities. In these cases, the Court's very rhetoric exposed its myopic vision in ways that now seem embarrassing. Does FAIR, so obviously correct to so many people right now, await the same ignominy decades away? FAIR was wrong in tone, a dismissive vox populi, adopted by a Court …

Religious Liberty And The Law, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Diversity Rationale: Unprovable, Uncompelling, Brian N. Lizotte

Michigan Journal of Race and Law

Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn't Matter?, Preston C. Green Iii, Bruce D. Baker

Michigan Journal of Race and Law

This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been …

Pop-Up Ads And Trademark Infringement: Whenu.Com Litigation, Janet Rubin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

Publications

No abstract provided.

Lawyering Across Multiple Legal Orders – Rethinking Legal Education In Comparative And International Law, Katharina Pistor

Faculty Scholarship

I appreciate the opportunity to briefly introduce a new course Columbia Law School is offering to first year students for the first time this spring semester. The course, which I will be co-teaching with my colleague George Bermann, is called "Lawyering in Multiple Legal Orders." The title reflects the basic "philosophy" of the course, namely that legal practitioners today will invariably work in more than one legal order. This notion is not unfamiliar to lawyers practicing in federal systems, such as the United States. By the end of the first semester students have a basic understanding of the federalist system …

No Lawsuit Left Behind, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Who Is The Child Left Behind? The Racial Meaning Of The New School Reform, Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

Segregated schools achieve their racist purpose by building a wall between poor black and brown children and those of us with privilege, influence, and power. It does not matter that this wall is not built pursuant to the mandate of law or that it is created by the cumulative effect of our private choices. It is segregation nonetheless and it encourages us to hoard our wealth on one side of the wall while children on the other side are left with little. The genius of segregation as a tool of oppression is in the signal it sends to the oppressor …

Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about higher …

Foreword, Richard B. Collins

Publications

No abstract provided.

Against "Academic Deference": How Recent Developments In Employment Discrimination Law Undercut An Already Dubious Doctrine, Scott A. Moss

Publications

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an "academic deference" argument. Citing the importance of their "academic freedom," defendants and sympathetic courts have asserted that federal courts should decline to "invade" higher education with "federal court supervision." Whether or not courts cite the "academic deference" doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that …

A Need For Heightened Scrutiny: Aligning The Ncaa Transfer Rule With Its Rationales, Jonathan Jenkins

Vanderbilt Journal of Entertainment & Technology Law

This note will explore the traditional rationales offered by the NCAA in implementing the Transfer Rule and suggests that these rationales are not served by the current Rule. Part I frames the environment in which the Transfer Rule exists by tracing the history of the NCAA. Part II explores the traditional rationales offered for justifying the Transfer Rule. In McHale v. Cornell University, the NCAA suggested that the purposes of the Transfer Rule are "(1) to prevent transfers solely for athletic reasons, (2) to avoid exploitation of student-athletes, and (3) to allow transfer students time to adjust to their new …

Let's Talk About Sex: School Surveys And Parents' Fundamental Right To Make Decisions Concerning The Upbringing Of Their Children, Robert Kubica

Villanova Law Review (1956 - )

No abstract provided.

A Truancy Court Program To Keep Students In School, Barbara A. Babb

All Faculty Scholarship

Under Maryland law, "[e]ach person who has legal custody or care and control of a child who is 5 years old or older and under 16 shall see that the child attends school..." MD. Education Code Ann. Sect. 7-301 (c) 2006. The law also provides penalties for violations, as the legal custodian or caregiver "who fails to see that the child attends school...is guilty of a misdemeanor," which could result in fines of $50 to $100 per day of unlawful absence and/or imprisonment for 10 to 30 days, depending on whether the conviction is a first or subsequent conviction. MD. …

Constitutional Lessons For The Next Generation Of Public Single-Sex Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

Single-sex public elementary and secondary schools are making a comeback. School districts are structuring these schools in a variety of ways, including by providing a single-sex public school for only one sex or by offering single-sex schools for both sexes. These disparate structures of single-sex schools create distinct potential harms, risks, and benefits for students. This Article contends that the constitutional framework applied to single-sex schools should be systematically modified to recognize the different potential harms, risks, and benefits of these single-sex schools in a manner that will create optimal conditions for creating single-sex public schools. The proposed modifications address …

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 …

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler

Faculty Scholarship

The current state of religion in the nation's public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation's very identity to that highly contested theological proposition. Likewise, despite the fact …

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …

Failing The Future: Development Objectives, Human Rights Obligations And Gender Violence In Schools, Erika George

Faculty Scholarship

Recognizing that school based gender violence is a global phenomenon that has remained largely unexplored, despite numerous international commitments to promote girls’ education, this chapter outlines recent international development policy objectives and priorities relating to gender equality and education. It then positions these development priorities against the international human rights legal framework. Finally, the chapter concludes that failure to bridge the gap between development priorities and human rights principles by fully appreciating the costs and consequences of school-based gender violence in terms of the discrimination that it is will ensure global failure to achieve gender equality in education well into …

Chaos In Public Schools: Federal Courts Yield To Students While Administrators And Teachers Struggle To Control The Increasingly Violent And Disorderly Scholastic Environment, Michael C. Jacobson

Cardozo Public Law, Policy & Ethics Journal

The note argues that the current legal standard for restricting students' First Amendment rights in public schools, established by Tinker v. Des Moines, is inadequate as it requires schools to wait for disruptions before acting, potentially leading to violence. It advocates for a more proactive approach, allowing schools to suppress speech if there is a reasonable likelihood of disruption, based on factors like past incidents or specific threats. This proposed standard aims to balance safety with free speech while prioritizing a secure learning environment.

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 …

Affirming Michigan’S Action: The Michigan Journal Of Race & Law's Response To Dr. Carcieri's Grutter V. Bollinger And Civil Disobedience, Adam Blumenkrantz, Jason Belmont Conn, Amrita Mallik, Michael Murphy

Faculty Scholarship

No abstract provided.

The Supreme Court's Role In The Growing School Choice Movement, Kevin D. Brown

Articles by Maurer Faculty

The expansion of school choice in elementary and secondary education, particularly in urban areas, is one of largest current educational reform movements sweeping the nation. This is true despite the fact that it is still too early for a consensus to develop about the educational benefits of increased choice. 1 Society always precedes schooling. Thus, major educational reforms pass in and out of favor depending on social conditions and how prevailing patterns of understanding interpret those conditions.2 Among the most significant social developments influencing educational reforms are legal decisions. Since the Supreme Court is the final authority on constitutional law, …

Academic Freedom, Larry Alexander

University of Colorado Law Review

No abstract provided.

Three Versions Of Nonsense, Paul Campos

University of Colorado Law Review

No abstract provided.

Is There A Right To Academic Freedom?, Frederick Schauer

University of Colorado Law Review

No abstract provided.

Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne

University of Colorado Law Review

No abstract provided.