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Access Denied: Tracking as a Modern Roadblock to Equal Educational Opportunity

Viona J. Miller

It has been more than sixty years since Brown v. Board of Education, and our country still presents children with dual and unequal systems of education. Not only are students segregated between school districts, but segregation is happening within school buildings as well as through tracking. Tracking is the process by which students are placed into higher or lower subject-specific courses such as math or science—sometimes as early as elementary school—based on their perceived abilities. This practice prohibits many students from accessing high-level courses. Courses such as Advanced Placement (AP) and honors classes have become indispensable for applying to college, but under a tracked system, if students do not take advanced classes in middle school, they will likely not be able to take advanced courses before graduating high school. Proponents of tracking argue that it is an efficient model of education that allows students to learn based on their skill level, but research shows that students are tracked along racial and class lines rather than on “ability.” Tracking causes both academic and psychological harm to students in lower tracks, and the opportunities students in higher tracks receive, as opposed to their innate intellectual abilities, are what cause them to succeed. In this Note, I argue that tracking is an inherently inequitable system that should be abolished since it denies so many students the resources, learning opportunities, and access to higher-level courses needed to succeed in today’s society. The legal tools that have been employed to dismantle this system under federal law—the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act—have had limited success, so this Note points to state law as a possible solution. State constitutions contain educational mandates and equal protection clauses that together require states to provide children with an equal educational opportunity. Under this doctrine, many courts have established that states must provide students with the opportunity to gain the skills necessary to compete in a changing society. Although state equal educational opportunity litigation has primarily occurred in the school finance context, this legal tool could be extended to tracking. A finding that tracking violates a student’s right to an equal educational opportunity would require school districts to detrack and open the door so that all students, regardless of race, class, or parental influence, have the opportunity to succeed.

Solving the IDEA Puzzle: Building a Better Special Education Development Process Through Endrew F.

Allison Zimmer

When it was first enacted, the Individuals with Disabilities Education Act (IDEA) had the potential to function both as a progressive statement on the rights and needs of children with disabilities and as a concrete mechanism for promoting the educa- tional progress of students with special needs—a population that had previously been all but denied access to the classroom. Yet despite the Act’s potential, over forty years of court precedents interpreting the Act have resulted in a diluted, unimaginative reality. The result is a system of inadequate education for students who most need educational revitalization: (1) a “continuum of alternative placements” provision that allows schools to provide students with only a bare outline of one-size-fits-most, group-based programming; (2) a “least restrictive environment” provision that does little to require that schools place students in public, integrated settings; and (3) an “educational benefit” standard that is far too comfortable with the status quo. This Note begins by tracing the failures of the IDEA in the delivery of special education today, characterized by the low academic achievement of students with disabilities, high rates of incarceration and exclusionary discipline, and a lack of imagination on the parts of districts and teachers. The Note then proceeds to explain how educational inaction has been allowed to persist through a policy of judicial deference to districts, with courts failing to demand bold action or creative generation of new and innovative special education programs. Despite these failures, this Note argues that the Supreme Court’s recent decision in Endrew F. v. Douglas County School District RE-1 can be used to help advocates move courts and districts out of the largely stagnant provision of special education services, where schools continue to rely on the same ineffective and dated programs rather than developing new methods to reach children with disabilities who continue to struggle in school. This Note argues that the language of Endrew F. can be read to promote a more rigorous, guided process of program development, helping advocates evaluate a district’s process and communicate failures to courts in a way that authorizes courts to act to correct these failures. In moving beyond the status quo and requiring that schools engage in constant growth, Endrew F. has the potential to solve the “puzzle” of the IDEA’s three primary provisions which, through court interpretations and decades of neglect, has led to a stalemate that incentivizes inaction rather than solutions. This Note’s novel interpretation of Endrew F. encourages a more robust reading of the Act, which will in turn support the growth and development of children with disabilities across the nation’s public schools.

Rethinking the Narrative on Judicial Deference in Student Speech Cases

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.

The Perverse Incentives of the No Child Left Behind Act

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.

Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach

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.

A Relational Approach to Schools’ Regulation of Youth Online Speech

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.

Maintaining Educational Adequacy in Times of Recession: Judicial Review of State Education Budget Cuts

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.

A New Model for States as Laboratories for Reform: How Federalism Informs Education Policy

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.

Anti-Gay Bullying in Schools—Are Anti-Bullying Statutes the Solution?

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.

Community Dreams and Nightmares: Arizona, Ethnic Studies, and the Continued Relevance of Derrick Bell’s Interest-Convergence Thesis

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.