Education Law

Brence D. Pernell

Title VI charges the federal government with removing discrimination in our public institutions. In light of disparate impact claims concerning a range of racially discriminatory education practices, this Note makes the case for the benefit of an official regulation from the U.S. Department of Education—as a federal arm—that more specifically informs the disparate impact framework’s educational necessity standard. This regulation would not only aid plaintiffs seeking to challenge harmful educational practices, but also provide courts with more specific and authoritative guidance in adjudicating Title VI disparate impact claims. This Note argues that a beneficial starting point for such a regulation would make clear that a discriminatory school policy should be evaluated based on whether a school policy advances equal educational opportunities and whether the school is in the best position to remedy a policy that does not. A regulation guided by this standard comports with Title VI’s original intention of rooting out discrimination against protected minority groups as well as helps to ensure minorities’ full access to a high quality public education.

Kevin Terry

In 2010, the Arizona State Legislature drew national attention to issues of ethnicity, pedagogy, and censorship in public schools by passing House Bill 2281. As interpreted by Arizona officials, this law made the curriculum of the Mexican American Studies Department in Tucson public schools illegal. The ongoing conflict between supporters and opponents of the Department in public discourse—and in state and federal courts—raises important questions about the ways that majority and minority cultures interact in United States educational institutions. This Note uses Arizona’s ethnic studies ban to suggest that Derrick Bell’s interest-convergence thesis and Lani Guinier’s related theory of interest-divergence continue to be useful tools in assessing the dynamics between powerful and marginalized groups. The Note sets the facts of the ethnic studies controversy against recent criticism of Professor Bell’s work and, in doing so, rebuts the assertion that the interest-convergence thesis has become less relevant to understanding contemporary intergroup conflict in the United States.

Peter Kauffman

To have a strong public education system, it is imperative to recruit and maintain high-caliber public school teachers and ensure that school administrators can terminate underperformers. Teachers unions have contributed to this effort by increasing professionalism in teaching and giving teachers a role in school management, but they have also detracted from it by making it too difficult to terminate incompetent teachers. Nonunionized charter schools that employ teachers at will, on the other hand, may leave teachers vulnerable to arbitrary or malicious terminations. Unionized charter schools, a relatively recent phenomenon, produce teacher contracts that, as the result of labor negotiations between two prominent players in education, could provide valuable lessons for reform to the American public education system. This Note’s analysis of contracts from the unionized charter schools in New York City reveals that they provide teachers with more job protection than employment at will but far less than provided in the public school union contract. Traditional public schools and unions should reform their collective bargaining agreements to provide a level of job security similar to that in the unionized charter school contracts. This may create the right balance between allowing principals to terminate incompetent teachers and protecting teachers from arbitrary or malicious terminations.

James E. Ryan

This Article examines the No Child Left Behind Act, which may be the most important federal education law in our nation's history. The Act is supposed to increase academic achievement in schools across the nation, raise the performance of disadvantaged students to the level of their more affluent counterparts, and attract qualified professionals to teach in every classroom. These goals are obviously laudable. As Professor Ryan explains, however, the Act creates incentives that actually work against their achievement. Specifically, the Act unintentionally encourages states to lower their academic standards, promotes school segregation and the pushing out of poor and minority students, and discourages good teachers from taking jobs in challenging classrooms. Should any or all of these effects occur, achieving the Act's goals will be more difficult, not less. Professor Ryan goes on to suggest a solution, albeit a partial one, to the problems created by the No Child Left Behind Act. Rather than focus on absolute achievement levels as the basis for school accountability, Ryan argues that the federal government and states should focus on rates of growth. Doing so would not only give a more accurate picture of school quality, and thus provide a fairer basis for school accountability; it would also diminish or eliminate the perverse incentives created by the No Child Left Behind Act. The Article concludes with a brief discussion of what the No Child Left Behind Act can teach us about the proper role of the federal government in education law and policy.

Sean R. Nuttall

Scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student speech protection and the Supreme Court’s subsequent decisions, Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick (the Bong Hits case) as a considerable retreat from this mark. By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires courts to defer to educators’ reasonable determinations of what speech may cause a substantial disruption and provides only very modest protection for student speech. Comparing the Tinker standard to those of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits’ requirement of deference to educators’ reasonable judgments is any less acceptable than Tinker’s. Deference under Tinker recognizes the difficulty inherent in predicting the potential consequences of speech without eliminating the limited protection provided by Tinker’s required showing of potential disruption. By contrast, the sole protection Bong Hits provides is in maintaining the line between advocacy and nonadvocacy, yet deferring to the reasonable judgments of educators on this question blurs the line considerably, thereby largely eliminating protection for student speech. To illuminate the differences between the Tinker and Bong Hits tests, this Note analogizes to Justice Oliver Wendell Holmes’s “clear and present danger” and Judge Learned Hand’s “express advocacy” tests and concludes that the special policy considerations that apply to the school environment do not justify departing from the principles underlying these paradigmatic First Amendment standards.

Shannon K. McGovern

In the decade since passage of the No Child Left Behind Act, American education
policy has been federalized and politicized to an unprecedented degree.
Widespread substantive and ideological criticism of the Act has left the future of the
legislation—and of federal education policy itself—in doubt. The Obama
Administration has called for an overhaul of No Child Left Behind, which has
engendered criticism as an unfunded federal mandate on the states. But the
Administration’s implementation of Race to the Top, a controversial education
reform competition among the states, has exacerbated concern about federal
encroachment upon state policy making autonomy.
In this Note, I explore both the troubling federalism implications of recent federal
education initiatives and the equally compelling policy considerations demanding
continued federal leadership. I conclude that globalization and entrenched interstate
inequality, among other forces, necessitate a continued, albeit more prudent,
role for the federal government in reforming K–12 education.

Ellison S. Ward

In the renowned pair of higher education cases decided in 2003, Gratz v. Bollinger and Grutter v. Bollinger, the Supreme Court affirmed the value of diversity as a compelling state interest in the higher education context, while placing careful limits on the means through which a university may utilize admissions to achieve diversity within its student body. As the challenge of creating a narrowly tailored diversity plan has grown, universities have devised a variety of ways to attract, admit, and retain a racially diverse student body, recognizing the unique challenges and frustrations that minority students may face in higher education. Schools such as the City University of New York, the University of Maryland, and the Massachusetts Institute of Technology have utilized scholarships, targeted classes and academic programs during the summer and school year, mentoring, and other student support programs in an effort to raise the low numbers of minority students enrolling in, and graduating from, their institutions. This Note applies the Supreme Court’s affirmative action jurisprudence to such programs, and proposes a framework for analyzing the programs that will allow them to meet the high standards of equal protection analysis. The Note concludes that, though many colleges have ended their programs or opened them to students of all races, such drastic measures are unwarranted.

Benjamin F. Heidlage

This Note examines the current doctrinal difficulties with student Internet speech. Student speech was traditionally protected from school authority when it was performed off campus—it received full First Amendment protection as opposed to the lower level of protection that on-campus speech received. However, the emergence of the Internet as a dominant form of communication has complicated this framework by blurring the line between off-campus and on-campus. As reflected in the Supreme Court jurisprudence, the question of the standard of protection to apply highlights the educational and constitutional issues at stake in student speech. While some courts seem willing to subject all youth speech to the lower constitutional standard, I propose a more nuanced approach. My approach, which I dub the “relational approach,” reframes the debate by reference to the role schools play in our society. The relational approach forces judges to examine the context in which the speech takes place and determine whether society expects such context to be governed by institutional educational authority. By adopting my approach, a more honest and reasonable jurisprudence can emerge.

Vinay Harpalani

This Note examines judicial review and oversight of state educational adequacy remedies in light of education budget cuts proposed during the recent recession. Educational adequacy litigation has been relatively successful in establishing children’s affirmative right to education under state constitutions, but due to separation of powers concerns, most state courts have been quite deferential to legislatures in reviewing remedies for constitutional violations. This leaves many schools underfunded and under-resourced in spite of successful adequacy litigation—a problem that is aggravated during times of recession, when many states face pressure to cut education budgets. This Note examines these issues using functional separation of powers theory, comparative analysis of state and federal government functioning, and pragmatic considerations related to remedial compliance. It argues that state courts should apply heightened judicial review to ensure remedial compliance and particularly to review state education budget cuts that may disrupt educational adequacy remedies. In this way, state courts can be more vigilant in maintaining educational adequacy.

Lisa C. Connolly

In the last decade, anti-bullying legislation has rapidly proliferated, motivated in part by a string of highly publicized suicides by bullying victims—many of whom were targeted because of their sexual orientation. Despite heightened attention to the issue of anti-gay bullying, few statutes extend explicit protection to sexual minorities. In this Note, I argue that statutory proscriptions against bullying speech targeted at LGBT youth are necessary to ensure full protection for this particularly vulnerable group. Such limitations are constitutional under Tinker v. Des Moines Independent Community School District, the Supreme Court’s seminal case on student speech. Just as importantly, explicit prohibitions on anti-gay speech place state authority behind a clear message that LGBT students are just as important as their heterosexual peers. This message helps construct a reality that leaves no room for anti-gay bullying—where full equality for sexual minorities is the norm, rather than the exception.