New Article: Lia Epperson, Are We Still Not Saved? Race, Democracy, and Educational Inequality, 100 Ore. L. Rev. 89 (2021). Abstract below:
Thirty-four years ago, in his seminal book, “And We Are Not Saved: The Elusive Quest for Racial Justice,” Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”… In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves as a perpetual impediment to addressing historic and persistent forms of racial injustice. This, he says, is “the root reason for the inability of black people to gain legitimacy.” This reality of racial inequality is part of our culture and common history. It is the contradiction embedded in the ideology that formed our republic.
New Article: LaToya Baldwin Clark, Barbed Wire Fences: The Structural Violence of Education Law, Abstract below:
In this Essay, I argue that, in urban metros like Chicago, poor Black children are victims of not just gun violence but also the structural violence of systemic educational stratification. Structural violence occurs in the context of domination, where poor Black children are marginalized and isolated, vulnerable to lifelong subordination across many domains. Specifically, I argue that U.S. education policy subjects poor Black children to the violence of intergenerational subordination by trapping children behind residential barbed wire fences, starving their schools of necessary resources, and abusively dangling powerless community control.
New Article: Kate Elengold, Mobility Matters: Where Higher Education Meets Transportation, SSRN Feb. 2022. Abstract below:
Higher education has long been hailed as the key to social and economic mobility. And yet, mobility itself is one of the greatest barriers to equity in higher education. Although scholars and policymakers have thus far paid scant attention to the role of transportation in higher education, this Article establishes why that oversight undermines educational equity.
Grounding its arguments in both interdisciplinary literature and rich original data from a multi-year mixed-methods research study, this Article demonstrates how transportation law and infrastructure affect college completion, disproportionately hindering completion for students of color. It further argues that higher education law and policy exacerbate, rather than alleviate, systemic transportation barriers for students, reinforcing education inequities.
This Article adds important dimensions to scholarship on both transportation and higher education. By focusing on the interaction between two structural systems, this Article offers a unique and critically necessary lens through which scholars can understand the complex landscape of higher education law. Finally, this Article offers education policymakers a range of policy and programmatic changes affecting transportation that can advance higher education equity.
New Article: Michele E. Gilman & Mary Madden, Digital Barriers to Economic Justice in the Wake of COVID-19, Data & Society, April 21, 2021. Abstract below:
This primer highlights major barriers to economic justice created or magnified by data-centric technologies in the wake of the coronavirus pandemic. Specifically, there are three major trends related to data-centric technologies that are undermining the current and future economic stability for marginalized communities:
1) Collapse of benefits automation, particularly with regard to unemployment insurance
2) Expanded workplace and school surveillance
3) Digital profiling of economic distress
There has been little discussion of how these trends will heighten existing economic inequalities as the nation attempts to rebuild post-pandemic. The primer aims to fill this gap through a conception of data justice, in which technology serves to empower people rather than to oppress them. Further, it provides suggestions for reform so that technology works for people, rather than against them, as the nation emerges from the grip of the pandemic.
New Article: LaToya Baldwin Clark, Barbed Wire Fences: The Structural Violence of Education, forthcoming U. Chi. L. Rev. Abstract below:
In this Essay, I argue that, in urban centers like Chicago, poor Black children are victims not just of gun violence, but also the structural violence of systemic educational stratification. Structural violence occurs in the context of domination, where poor Black are marginalized and isolated, vulnerable to life-long subordination across many domains. Specifically, I argue that U.S. education policy that traps children behind residential barbed wire fences, starves their schools of necessary resources, and abusively dangles powerless community control. Taken together, these structural choices subject poor Black children to the violence of intergeneration subordination.
New Article: Helen Hershkoff & Nathan Yaffe, Unequal Liberty and a Right to Education, SSRN. Abstract below:
This article lays the groundwork for a liberty-based federal constitutional right to quality public schooling. We start from the premise that Black, Brown, and poor children now and historically have never enjoyed equal liberty in the United States, and that, for these children, the public school, like the prison, today functions as a site of social control, relying upon confinement and force, while failing to fulfill its pedagogic purpose. In urging a liberty-based rationale, we rest on the foundational principle that the state cannot deprive a person of liberty without a legitimate justification. Nevertheless, states throughout the United States confine thousands of Black, Brown, and poor children to public schools that do not meaningfully educate and instead serve as no more than unsafe and harmful warehouses for the students detained within them. Having first unequally apportioned educational opportunity, the state then compels attendance in these schools on pain of civil or criminal penalties. The confinement of Black, Brown, and poor children within resource-starved carceral schools maintains and reproduces race-class subjugation within a system of racial capitalism.
We argue, within the frame of abolition constitutionalism, that the state violates the traditional guarantee of equal liberty if a state’s system of public schooling relegates Black, Brown, and poor children to sub-standard and unsafe schools that perpetuate the children’s persistent structural disadvantage. In our view, such a system produces and reinforces the very kind of racial and class caste that the Fourteenth Amendment aimed to abolish. Judicial remedies that order states to provide education pitched at a level of basic literacy will not remedy the constitutional violation, but instead further entrench lifelong social, economic, and political confinement. The principle of equal liberty requires that public schooling, to be adequate, afford opportunities for quality education that allow children to flourish. If a state cannot provide a quality education in the child’s “assigned” school district, then the state must remedy the violation by releasing the child from confinement and allowing the child to transfer to schools elsewhere that do meet educational standards.
New Article: Juliet Buesing Clark, From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia, 107 Va. L. Rev. 1115 (2021). Abstract below:
This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity.
In the years after Brown, Virginia dramatically resisted efforts to integrate. Then the Commonwealth embraced a moderate stance on integration, as part of its 1971 constitutional revision, to end de jure segregation and provide a “quality” education for “all children.” Looking to new quality standards produced by a Board of educational experts, Virginia optimistically turned to the technocracy movement, hoping to take education out of politics. New aspirational language was meant to deepen the legislature’s commitment to public schools and repair Massive Resistance’s damage to public schools.
Looking back fifty years later, however, it is clear that this constitutional revision, while successfully meeting its goals around Massive Resistance, did not address underlying problems it is often assumed to have solved, such as inadequate funding or persistent de facto segregation. Other states’ journeys battling the same issues have looked different, and these differences highlight some of the strengths and weaknesses of Virginia’s approach.
This Note ultimately argues that the 1971 constitutional revision never intended to solve these problems, and thus, the work for educational advocates right now is not to come up with more clever litigation, but to convince Virginians to agree on a fairer school system—perhaps through a new constitutional revision. In the context of new public concern about racial justice following George Floyd’s death and the Coronavirus crisis, I argue that Virginia today may finally be ready to finish the work started in 1971.
New Article: Matthew Goldstein, A Sinking Student Housing Empire, N.Y. Times (Nov. 3, 2021).
An ambitious property management company that pitches upscale off-campus apartments across the country has left tenants and investors stewing.
New Article: Abbye Atkinson, Philando Castile, State Violence, and School Lunch Debt: A Meditation, 96 NYU L. Rev. Online 68 (2021). Abstract below:
This essay reflects on Philando Castile and the work he did to support the children who passed through his school cafeteria. By regularly paying off their school lunch debt, Mr. Castile voluntarily assumed a vital caretaking role that the state refused to accept: namely, supporting food-insecure children and education through debt-free lunch. He kept children safe in this regard, even up to the moment that the state violently stole his life on July 6, 2016. Even as his death is a marker of the continuing, racialized excesses of American policing, Mr. Castile’s life in service to hungry schoolchildren reveals the sometime perversity of the public-private American social provision policy that continues to impose the burdens of financial insecurity on individuals least able to bear them.