Category Archives: Education

New Article: The Constitutional Compromise to Guarantee Education

New Article: Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735 (2018). Abstract below:

Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity.

New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory.

This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education.

Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity.

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New Article: The Constitutional Compromise to Guarantee Education

New Article: Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735 (2018). Abstract below:

Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity.

New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory.

This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education.

Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity.

New Report from the Sargent Shriver National Center on Poverty Law: The Shriver Summit: The Future of Justice

The Shriver Summit: The Future of Justice, held on December 1, 2017, in Chicago, Illinois, brought together advocates and experts to explore what we need to secure justice, every day, for everyone.

New Article: The School-to-Prison Pipeline’s Legal Architecture: Lessons from the Spring Valley Incident and Its Aftermath

New Article: Josh Gupta-Kagan, The School-to-Prison Pipeline’s Legal Architecture: Lessons from the Spring Valley Incident and Its Aftermath, 45 Fordham Urban L.J. 83 (2017). Abstract below:

This Article examines the 2015 Spring Valley High School incident – the high-profile arrest of a Columbia, South Carolina high school student for “disturbing schools” in which a school resource officer threw her out of her desk – to identify and illustrate the core elements of the school-to-prison pipeline’s legal architecture, and to evaluate legal reforms in response to growing concern over the pipeline.

The Spring Valley incident illustrates, first, how broad criminal laws transform school discipline incidents into law enforcement matters. Second, it illustrates how legal instruments that should limit the role of police officers assigned to schools (school resource officers) can direct their involvement in situations that school officials should handle without law enforcement. Third, too few diversion programs are operated by schools, leading to law enforcement involvement as a means to access such programs. Fourth, prosecutors too rarely exercise discretion to screen out charges that are ill-suited for juvenile court involvement.

The Spring Valley incident helped catalyze promising, but incomplete, legal reforms in South Carolina. Some reforms have caused some important successes – most notably, the Richland County (Columbia) Sheriffs Department’s school resource officers have cut school-based arrests of teenagers significantly. Statewide, a bill has passed one house of the legislature to narrow the scope of disturbing schools. A new state regulation limits when schools may refer misbehavior to law enforcement. Reforming all aspects of the pipeline’s legal architecture would lead to broader and more lasting change.

Article: Law School-Administered Financial Aid: The Good News and the Bad News

studyingArticle: William C. Whitford, Law School-Administered Financial Aid: The Good News and the Bad News, 67 Journal of Legal Education 4 (2017). Abstract below:

In 2015, the ABA Task Force on Financing Legal Education reported a vast increase in law school-administered financial aid over the previous ten years. Financial aid administered by law schools was even the most rapidly rising cost factor for law schools collectively. At first glance this increase might seem like some good news for persons sharing my values and worldview. Historically financial aid has been associated with helping the financially needy, encouraging them and members of underrepresented identities to attend law school, and helping make it possible for students who want to devote their careers to low-paying, public-interest-oriented work to achieve their dreams. In fact, however, as the task force makes clear, almost all the increased financial aid is being awarded to applicants with high LSAT scores and high undergraduate GPAs — what is called “merit” these days. Any correlation between the beneficiaries of increased financial aid and the kinds of students who traditionally benefited from law school-administered financial aid is purely coincidental.

News Coverage: “He attends elite UC Berkeley but lives in a trailer with no heat or sewer hookups. Soon, he’ll be scrambling to find new shelter”

News Coverage: Teresa Watanabe, He attends elite UC Berkeley but lives in a trailer with no heat or sewer hookups. Soon, he’ll be scrambling to find new shelter, LA Times, Mar. 12, 2018. [Complete with good photos.]

New Article: “A Dream Still Deferred: The Unlawful Use of Student Fees for Instructional Technology in an Alabama Public School Causing a Disparate Impact for Minority Children”

New Article: Taurus Myhand, A Dream Still Deferred: The Unlawful Use of Student Fees for Instructional Technology in an Alabama Public School Causing a Disparate Impact for Minority Children, forthcoming Rutgers Race & the Law Review, Spring 2018. Abstract below:

In framing the United States Constitution, the public education mandate was reserved for the states to strengthen, not weaken, the efforts of the governments to provide an education for the people. However, there are far too many instances where equal access to educational opportunities is still a dream deferred for many racial and ethnic minority children that are enrolled in public school systems throughout the United States. That is particularly the case for racial and ethnic minority students at one public school system in Alabama.

This Note explores the constitutional issues raised by Pike Road School System’s use of mandatory technology fees in the public-school setting. Part I discusses the absence of a public education mandate in the United States Constitution. Part II discusses the technology policy of the Pike Road School System and the student fees being imposed for the use of “instructional technology.” Part III discusses the Alabama constitutional and statutory public education mandate. Part IV discusses the disparate impact being caused by the school system’s mandatory technology fees. The Note concludes with a brief discussion of the need for a more dignified solution for school systems that are seeking to hold a high standard of educational excellence while avoiding practices that widen the opportunity gap and leaves racial and ethnic minorities with fewer opportunities.

New Article: “The ‘Free College’ Illusion: How State Tuition Support Programs Are Widening the Opportunity Gap”

New Article: Lauren A. DiMartino, The ‘Free College’ Illusion: How State Tuition Support Programs Are Widening the Opportunity Gap, 25 Geo. J. Poverty L. & Pol’y 257 (2018). Abstract below:

In recent years, educational efforts nation and state-wide have been focused on closing the gap between the opportunities available to different groups of students. The “income achievement gap,” in particular, results in average performing middle-income students graduating college at a rate of almost three times that of an average performing low-income student. For students in the lowest quintile of income, college tuition — on average — costs 37% of a family’s annual income, compared to only 2.5% for upper-income families. Campaigns across the country are seeking to close this gap by providing tuition-free college. Few programs, however, fully consider the reality of the obstacles faced by low-income students that prevent persistence to graduation. While the idea of “free college” equates to accessibility and attainability, often these new programs only remove obstacles for students, or the families of students, who are already highly likely to obtain a college degree. This note argues that many “free college” laws, as they are being put forward, effectively widen the achievement gap by increasing educational opportunities for middle-income students without removing additional barriers for low-income students. This further complicates the already complex financial aid process and fails to support the most vulnerable student populations. Informed by legal, economic, and student engagement experience, this note explores the statutory and regulatory framework for the current educational and financial aid system in New York State. It offers a critique on how the laws are thwarting the goals they originally sought to accomplish, acknowledges what the laws have gotten right, and outlines recommendations for consideration, most applicable for New York State, but relevant to other jurisdictions as they consider new laws to finance higher education.

New Article: “Shifting the Scope: How Taking School Demographics into Account in College Admissions Could Reduce K-12 Segregation Nationwide”

New Article: Thomas Scott-Railton, Shifting the Scope: How Taking School Demographics into Account in College Admissions Could Reduce K-12 Segregation Nationwide, 36 Yale Law & Policy Review 219 (2018). Abstract below:

Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics. While existing affirmative action programs at colleges provide some counterweight to this dynamic, they are limited by institutional (and constitutional) constraints. Out of concern for revenue and rankings, many colleges are constrained in the number of students from low-income backgrounds they are willing to admit. Such a limited scope is not inevitable, however.

If colleges were to give a substantial admissions bonus to applicants who had attended K-12 schools with at least a certain percentage of low-income students, higher education could become a force for countering inequality at the K-12 level, instead of reproducing it. College admissions policies serve as a crucial reference point for parents, students, and educators on down through K-12. By rewarding applicants for attending socioeconomically integrated schools, colleges would mobilize the resources of private actors across the country towards integration. The benefits of this would be significant, especially for students from low-income families who would have an increased chance of attending integrated K-12 schools as a result. Such a policy would also help colleges better foster diversity on campuses, as more students would have had prior experience in integrated settings.

This Note explores the ongoing problem of K-12 re-segregation, argues that by adopting this policy colleges could work to promote integration, examines how such a policy could best be designed to do so, and addresses why such a policy would be constitutional. At a time when educational inequality is on the rise, there is an urgent need for new affirmative action proposals that can combat segregation and do so within colleges’ existing constitutional and institutional constraints. The policy proposal advocated in this Note would do both, interrupting key elements of the present vicious circle.

News Coverage: Oregonian Series on “Reading, Writing, Evicted”

The Oregonian is doing a strong series on “Reading, Writing, Evicted” that includes stories, an interactive map of school displacement, and videos about how evictions displace kids from schools.