Education Law
Note
“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation
The assumption that remedying racial inequality benefits only people of color while being costly to White people underlies many Supreme Court decisions. White people benefit spiritually and democratically from racial equality. Recognizing these benefits warrants a new theory of interest conve…
Forum
Who’s Afraid of Carson v. Makin?
Carson v. Makin was yet another defeat for progressives in a brutal term. But just how bad was it? This Essay examines how Democratic lawmakers in Maine have already neutralized the ruling, teaching important lessons about how concerned Americans can best resist the Court’s conservative supermajorit…
Forum
The Once and Future Promise of Religious Schools for Poor and Minority Students
When Carson v. Makin allowed religious schools participation in educational-choice programs, the public-school establishment predicted dire results for marginalized students. This Essay responds to that prediction, exploring religious schools’ historical importance to marginalized students, the publ…
Forum
When Religion and the Public-Education Mission Collide
Recently, the Supreme Court has chosen education as the primary stomping ground for rewriting Free Exercise Clause doctrine. It has framed education policies that prevented public funds from promoting religious indoctrination as discrimination. In the process, it has created a new victim—educational…
Forum
Racialized Religious School Segregation
Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democrac…
Note
Proceduralize Student Speech
This Note proposes a new dimension for student-speech jurisprudence: procedure. How schools punish speech drives the lessons students learn, and the lessons students learn should drive judicial determinations of whether the educational value of a restriction is worth the First Amendment infringement…
Note
Schoolhouse Property
Since the Supreme Court’s 1975 decision that students enjoy constitutionally protected property interests in education, most states have passed laws and regulations requiring schools to provide meals and health services to students. These services arguably constitute entitlements, requiring sc…
Forum
Complicated Process
Introduction I come to this important Title IX Conversation from a unique perspective. This is not because I was a federal judge for seventeen years. Rather it is because before my judgeship, I was a feminist litigator and a criminal defense lawyer. And from this vantage point, my concern…
Forum
For the Title IX Civil Rights Movement: Congratulations and Cautions
On September 25, 2015, the Yale Law Journal held a “Conversation on Title IX” that confirmed the existence of a new civil rights movement in our nation and our schools. The movement’s leaders are smart, courageous survivors of gender-based violence—virtually all of whom are current un…
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Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**
In Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court decided, by the thinnest of margins, that Arizona taxpayers cannot m…
Forum
A Winn for Educational Pluralism
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**
Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v. Winn, have emerged a…
Review
The Common School Before and After Brown: Democracy, Equality, and the Productivity Agenda
120 Yale L.J. 1455 (2011).
In Brown's Wake: Legacies of America's Educational Landmark
By Martha Minow
New York, NY: Oxford University Press, 2010, pp. 320. $24.95.
Note
The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment
120 Yale L.J. 1130 (2011).
This Note uses the 1999 sunset and 2003 reauthorization of New Mexico’s public employee collective bargaining law to estimate the causal effect of teacher collective bargaining on student achievement. This Note finds that mandatory teacher bargaining laws increase the pe…
Feature
Confronting the Seduction of Choice: Law, Education, and American Pluralism
120 Yale L.J. 814 (2011).
School choice policies, which allow parents to select among a range of options to satisfy compulsory schooling for their children, have arisen from five periods of political and legal struggle. This Feature considers the shape of school choice that emerged in the 1920s ed…
Forum
Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations
Note
Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children
118 Yale L.J. 948 (2009).
This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely d…
Note
Is There a Place for Religious Charter Schools?
118 Yale L.J. 554 (2008).
Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school sys…
Note
When Parents Aren't Enough: External Advocacy in Special Education
117 Yale L.J. 1802 (2008).
The Individuals with Disabilities Education Act (IDEA) has been widely celebrated for providing millions of disabled children with broader educational and life opportunities. This Note seeks to improve the implementation of the IDEA by questioning one of its key assumptio…
Forum
The "Bong" Show: Viewing Frederick's Publicity Stunt Through Kuhlmeier's Lens
Next week, the U.S. Supreme Court will hear argument in Morse v. Frederick. At issue is whether a public high school principal violated a student’s First Amendment rights by suspending him for displaying a banner reading “BONG HiTS 4 JESUS” at an outdoor school rally for the 2002 Winter Olympi…
Forum
Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu
Goodwin Liu’s inspiring article mines a rich vein of the history of American education. He revives and re-interprets congressional attempts to create a national system of public schools in the years following the Civil War. Professor Liu’s work is a signal contribution to the national movement f…
Forum
A Response to Goodwin Liu
Professor Liu’s article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to pro…
Forum
Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools
In two articles—one recently published in this Journal and another forthcoming in the NYU Law Review—Professor Goodwin Liu argues that the federal government should play a greater role in financing public education, should distribute more fairly among states its funds targeted to the neediest sc…
Article
Education, Equality, and National Citizenship
116 Yale L.J. 330 (2006)
For disadvantaged children in substandard schools, the recent success of educational adequacy lawsuits in state courts is a welcome development. But the potential of this legal strategy to advance a national goal of equal educational opportunity is limited by a sobering and l…
Note
For-Profit and Nonprofit Charter Schools: An Agency Costs Approach
115 Yale L.J. 1782 (2006)
This Note applies agency costs theory to explain charter schools' use of for-profit and nonprofit forms, and to suggest ways to make charter school regulation more sensitive to the differences between these forms. Borrowing from Henry Hansmann's "contract failure" theory of …
Note
Civil Rights, Antitrust, and Early Decision Programs
115 Yale L.J. 880 (2006)
Early decision admission programs--which allow a student to receive early notification of admission in return for a commitment to attend a particular institution--enjoyed explosive popularity at America's institutions of higher education in the 1990s. Schools use the programs…
Feature
Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy)
114 Yale L.J. 1353 (2005)
More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary edu…
Note
Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
113 Yale L.J. 1093 (2004)
In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compel…
Note
Private Voucher Schools and the First Amendment Right To Discriminate
113 Yale L.J. 743 (2003)
At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of t…
Comment
Renting Space on the Shoulders of Giants: Madey and the Future of the Experimental Use Doctrine
113 Yale L.J. 261 (2003)
The experimental use doctrine in patent law protects alleged infringers who use patented inventions solely for experimental purposes, such as testing whether a device functions as claimed or re-creating a process to observe its effects from a scientific perspective. The judi…
Article
The Political Economy of School Choice
111 Yale L.J. 2043 (2002)
This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not sup…