Education Law Commons^™

Due Process Shaped By The Present Instead Of The Past: The Needed Reinvigoration Of A Lawrence Vision Of Due Process, Azor Cole

Seattle University Law Review

The recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation’s history and tradition. The other is to ask whether the right to be found is fundamental to this Nation’s scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

Foreword, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

No abstract provided.

Channeling A Federal Commitment To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Journal of Race, Gender, and Ethnicity

This article examines the evolution of efforts to secure a federal right to education, highlighting the unsuccessful attempts at the federal level and the shift to state constitutional litigation, which has yielded mixed and limited outcomes. Part I outlines these failed efforts and their consequences. Part II introduces Professor Black’s proposal for a federal right to education, anchored in the State Citizenship Clause. Part III presents a new federalism model that suggests federal constitutional commitments should guide the interpretation of state constitutional provisions, particularly regarding education. The article concludes by advocating for state courts to adopt a more robust interpretation …

Leandro V. State: The Challenges Of Litigating School Funding Equity In Hyper-Partisan Times, Mark Dorosin

Journal of Race, Gender, and Ethnicity

The Leandro case serves as a critical case study highlighting the limitations of litigation in addressing educational inequities, particularly in states committed to undermining public education. Despite the judiciary's constitutional role as an independent check on legislative actions, the politicization of state supreme courts has transformed them into partisan entities. This shift erodes public trust in the legal process and disproportionately harms marginalized groups, many of whom have historically relied on the courts to safeguard their constitutional rights, including equitable access to public education. The Leandro case underscores the challenges of achieving meaningful educational reform through litigation in a highly …

Protecting Students’ Right To Listen By Statute, Noah C. Chauvin

Journal of Race, Gender, and Ethnicity

This article argues that First Amendment challenges to book bans in public school libraries, based on the right to receive information, are unlikely to succeed. Even if such bans clearly violate students' rights, constitutional litigation is slow and unpredictable, and courts may not consistently support these challenges. Therefore, instead of relying solely on litigation, opponents of book bans should pursue legislative change. The paper proposes a model statute that advocates and legislators can use to ban book bans. It also acknowledges the complexities of terminology and scope, defining "book bans" as decisions to restrict or remove materials from school libraries, …

Idea Manifestation Determination Review As Restorative Practice, Matt Saleh, Barbara J. Hickman, Angela M. T. Prince, Lawanda H. Cook, Jackie Bickford, Kristie Chu, Erika Kitsantas

Journal of Race, Gender, and Ethnicity

This article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent …

Ai As A Tool For Education Equity: A Review Of Recent Literature, Jace F. Peterkin-Rawls, J.D.

Journal of Race, Gender, and Ethnicity

This article addresses the challenges faced by one in five children in the United States who have learning or thinking differences, disabilities, or disorders. Despite existing resources like Individualized Education Plans (IEPs) and 504 plans, many students with learning disabilities struggle due to insufficient personalization, limited teacher support, and inadequate funding. The article explores the potential of Artificial Intelligence (AI) to enhance current educational resources and better support these students. It provides an overview of common learning disabilities and existing support mechanisms, followed by a discussion of the ethical implications of AI in education from four scholars. The article then …

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Faculty Publications & Other Works

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action-like remedying an institution's history of discrimination, or curing a school's present and ongoing discrimination by …

From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This Article analyzes Kennedy's implications for educators' free speech rights at school. It is important to note, at the outset, that the Kennedy majority's description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy's prayers and the football players' involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority's assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a …

Book Review—Shaping The Bar: The Future Of Attorney Licensing, Kevin P. Lee

Dickinson Law Review (2017-Present)

No abstract provided.

Overturning Race-Conscious Admissions: Analyzing The History Of Higher Education Affirmative Acton Legal Discourse And Preserving Whiteness, Hiba A. Qari

Graduate Theses, Dissertations, and Problem Reports (ETD)

Although researchers have investigated Affirmative Action, few have attempted to understand and explain the language mechanisms shaping public opinion and policy. The purpose of this study was to explore the historical context of higher education Affirmative Action legal discourse. This study employed Critical Discourse Analysis and Critical Race Theory to analyze how language and race, as social constructs, maintain White dominance in law and higher education. The thematic concepts included power, White normativity, and diversity rhetoric. This project explored the historical evolution of the U.S. Supreme Court’s decisions on Affirmative Action policy in higher education. The study also investigated the …

A Rpl In Time: A Brown Buffalo's Observations On The Ongoing Struggle Of Civic And Racial Nationalism In Higher Education - Circa 2023, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Washington and Lee Law Review

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by …

The Structure Of Corporate Law Revolutions, William Savitt

Seattle University Law Review

Since, call it 1970, corporate law has operated under a dominant conception of governance that identifies profit-maximization for stockholder benefit as the purpose of the corporation. Milton Friedman’s essay The Social Responsibility of Business is to Increase Its Profits, published in September of that year, provides a handy, if admittedly imprecise, marker for the coronation of the shareholder-primacy paradigm. In the decades that followed, corporate law scholars pursued an ever-narrowing research agenda with the purpose and effect of confirming the shareholder-primacy paradigm. Corporate jurisprudence followed a similar path, slowly at first and later accelerating, to discover in the precedents and …

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …