Education Law
Reconstruction State Constitutional Conventions and the Rebirth of American Schooling
In the state constitutional conventions of the Reconstruction South, biracial coalitions of delegates constitutionalized universal public-school systems and kept their constitutions free from mandatory segregated schooling. These oft-overlooked constitutional actors illuminate the true legal relationship between our nation’s history and the current educational landscape.
Piety Police
This Note uncovers the history of how the Brigham Young University Police Department blurred the boundaries between criminal law and church doctrine. These practices included sting operations that used students as undercover agents to target morals offenses. Such tactics illustrate the risks of religiously affiliated policing as it spreads nationwide.
Against the Work-Study Boundary: Synthesizing Title VII and Title IX Protections for Student-Employees
Courts routinely deny student-employees facing sex discrimination the expansive Title VII protections they deserve, and student-employees often fail to bring Title IX claims that more fulsomely capture this discrimination. Looking forward, courts should synthesize Title VII’s protections with Title IX’s coverage by considering education-based evidence when evaluating Title VII claims.
Against Ventriloquizing Children: How Students’ Rights Disguise Adult Culture Wars
This Essay argues against the pursuit of students’ rights, which function mainly as a smokescreen behind which adults have advanced their own partisan agendas in our culture wars. Independent rights for students are both theoretically untenable and politically damaging to our liberal democracy.
“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 convergence and offers a promising path toward racial equality.
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 democracy-enhancing functions of public education.
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 public-school establishment’s longstanding hostility to religious schools, and the establishment’s own role in educational inequality.
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 equity and adequacy for traditionally disadvantaged students.
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 supermajority in the years ahead.
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.
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 schools to afford heightened procedural protections to students subject to exclusionary discipline.
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 as a popular education policy tool. While details vary by state, scholarship tax credit programs allow individuals or corporations (and in some cases, including Arizona, both) to receive a state income tax credit for donations to charitable organizations—called “scholarship tuition organizations” in Arizona—that provide scholarships for children to attend private schools. Currently, seven states—Arizona, Florida, Georgia, Indiana, Iowa, Pennsylvania, and Rhode Island—have such programs in place. During the 2010-2011 school year, the scholarship organizations participating in these programs awarded nearly $290 million through over 123,000 scholarships. With two exceptions, scholarship tax credit programs exclusively target low-to-moderate-income students. For example, in Florida—the state with the largest scholarship tax credit program in the nation—eligibility is limited to students qualifying for free or reduced-price lunches, and scholarships are disproportionately awarded to Latino and African-American students. And the most recent evidence suggests that even the non-means-tested tax credit program at issue in Winn—Arizona’s individual scholarship tax credit program—disproportionately benefits low-income kids. Thus, scholarship tax credit programs help open the doors of high-quality private schools to thousands of children of modest means who might otherwise languish in failing public schools.
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 mount an Establishment Clause challenge to Arizona’s state income tax credits for “contributions to school tuition organizations.” Writing for a five-Justice majority, Justice Kennedy held that Flast v. Cohen only bestows standing upon taxpayers contesting direct monetary outlays on Establishment Clause grounds. Flast, the majority held, does not extend standing to taxpayers objecting under the Establishment Clause to tax provisions such as the Arizona income tax credit. In dissent, Justice Kagan, joined by three of her colleagues, concluded that Flast does afford standing to the Arizona taxpayers challenging the state’s tax credits for contributions to school tuition organizations. Central to Justice Kagan’s dissent was her invocation of the academic doctrine of “tax expenditure” analysis. That analysis, Justice Kagan wrote, recognizes that “targeted tax breaks . . . are just spending under a different name.” The Court has often confronted the question of whether direct public outlays and tax subsidies are equivalent for constitutional purposes. However, Justice Kagan’s dissent in Winn is only the second time that tax expenditure doctrine has formally played such an explicit, prominent role in the Court’s decisionmaking.
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.
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 performance of high-achieving students while simultaneously lowering the performance of poorly achieving students. After establishing this core empirical result, the Note explores its implications for current trends in American education policy and for normative arguments about the role of teachers’ unions in public schools.
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 education fight over Americanization of immigrants; the freedom-of-choice plans used to avoid court-ordered school desegregation in the 1950s and 1960s; magnet schools used to promote school desegregation in the 1970s until they were halted by the Supreme Court; constitutional campaigns for vouchers to pay for religious schooling; and current experiments with charter schools and other alternatives, including special-identity schools. The idea of school choice appeals to individual freedom, market competition, religious freedom, multiculturalism, and ideological neutrality. School choice programs draw new talent into schooling and offer new avenues for social integration but only if that goal becomes an explicit public commitment, shaping available choices. Otherwise, school choice can enable new forms of social separation and obscure the absence of equal opportunities for all students.
Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations
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 deferential to the Supreme Court, limiting references to popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and “court-packing”), but are sometimes receptive to subtler, longer-term checks (like social mobilization and judicial nominations). If judicial supremacy does run rampant, as popular constitutionalists claim, it would appear as though our public schools are complicit in its entrenchment.