Education Law
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 system. But the balkanization of school districts, oppression of nonadherents, and entanglement between church and state remain important concerns. This Note argues that there is a place for religious charter schools primarily in districts best able to ameliorate these concerns—those that have sufficient resources and the diversity of religious groups necessary to create a variety of religious and nonreligious school options.
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 assumptions: that parents possess the tools to advocate for their children in special education matters. This Note argues that many parents need assistance to achieve optimal outcomes for their children because of the complexity of both the disabilities involved and the formal rules of the system itself. Several policy options are considered in the hope that local educational agencies will implement pilot programs to further explore the issue of external advocacy in special education.
Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu
Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools
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 largely neglected fact: the most significant component of educational inequality across the nation is not within states but between states. Despite the persistence of this inequality and its disparate impact on poor and minority students, the problem draws little policy attention and has evaded our constitutional radar. This Article argues that the Fourteenth Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation. The argument focuses on the Amendment's opening words, the guarantee of national citizenship. This guarantee does more than designate a legal status. Together with Section 5, it obligates the national government to secure the full membership, effective participation, and equal dignity of all citizens in the national community. Through a novel historical account of major proposals for federal education aid between 1870 and 1890, I show that constitutional interpreters outside of the courts understood the Citizenship Clause to be a font of substantive guarantees that Congress has the power and duty to enforce. This history of legislative constitutionalism provides a robust instantiation of the social citizenship tradition in our constitutional heritage. It also leaves a rich legacy that informs the contemporary unmet duty of Congress to ensure educational adequacy for equal citizenship.
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 nonprofits and recent data on the makeup of the charter school market, I argue that nonprofit forms dominate because they minimize the unusually high agency costs that characterize interactions between charter operators and the parents, regulators, and donors who influence them. For-profit schools survive only when the economies of scale they capture through superior capital-raising offset their higher agency costs. I also compare nonprofits' and for-profits' abilities to achieve some of charter school policy's more complex goals. These include resource attraction, localized governance, and output-based accountability. I conclude by arguing for changes in regulation to control for-profits more tightly and to reflect more accurately nonprofits' and for-profits' relative strengths.
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 to stabilize class size and identify enthusiastic applicants. The programs, however, favor students who are wealthier and whiter than their regular decision classmates. This Note applies civil rights and antitrust principles to discuss serious legal concerns raised by early decision programs.
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 education policy debates. Instead, our conversations frame the causes of and remedies for educational inequality in terms of racially neutral private choices. Describing this phenomenon as the "privatization of concern" for our children, this article critiques a narrow view of parental responsibility and care that justifies segregation by invoking the liberty of familial privacy. Employing narratives from his experience as a D.C. school board member and parent, Charles Lawrence calls for an expanded understanding of John Hart Ely's process-defect theory that recognizes the continuing influence of racism on school choice. He argues that our silence on the subject of race undermines the democratic process, and he suggests that breaking the taboo against candid conversation about race and racism is a prerequisite to the creation of the community of care envisioned by Brown v. Board of Education.
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 compelling state interest. Adopting much of Justice Powell's analysis from the landmark Bakke case, the Grutter majority emphasized that racial diversity within a student body promotes the "'robust exchange of ideas,'" and renders classroom discussions "'more enlightening and interesting.'" The Court further reasoned that universities deserve substantial leeway in making admissions decisions because they are uniquely positioned to assess the pedagogical values associated with racial diversity. Notably, however, the Court did not confine its analysis of the educational benefits of diversity to matters concerning the quality of the educational experience at the University of Michigan. Rather, it relied heavily on a separate strand of argument that emphasized the need to produce students whose training or experience "'prepares them as professionals'" to function effectively within "'an increasingly diverse workforce.'" To underscore this point, the Grutter majority described the American military's reliance on race-conscious recruitment and admissions policies for its service academies and Reserve Officer Training Corps (ROTC) programs. Citing claims raised by a group of retired military personnel in an amicus filing, the Court intimated that the return to a racially homogenous officer corps would compromise the military's ability to provide national security. From here, "'only a small step'" was required for the Court to conclude that the "'country's other most selective institutions'" likewise depend on racially diverse leadership to ensure their continued success. Hence, the majority explained that in the realm of business, "exposure to widely diverse people, cultures, ideas, and viewpoints" cultivates skills necessary to succeed in today's "increasingly global marketplace." Likewise, it described the visible presence of minority lawyers in the upper echelons of politics and the judiciary as crucial to the public's continued confidence in these institutions. What is striking about these claims is that they regard the project of diversifying higher education as a means of populating the professional ranks with a new generation of racially diverse, or at least racially attuned, leaders. In effect, it is the Court's appeal to these occupational needs for diversity, as opposed to the intrinsic importance of cross-racial understanding, that forms much of the basis for its conclusion that the educational benefits of diversity constitute a compelling state interest. The notion that racially diverse leadership contributes to the functionality of certain professions is not a recent innovation. Rather, such claims have been advanced by numerous industry leaders, sociologists, and historians. In the legal context, occupational need arguments have most often arisen as defenses against allegations of racially biased hiring practices. Accordingly, both Congress and the courts have grappled with the question of how to strike the proper balance between catering to important occupational needs and upholding the law's broader prohibition against racial discrimination. During the legislative debate over Title VII of the Civil Rights Act of 1964, Congress resolved this dilemma by unambiguously rejecting the concept that a person's race could ever constitute a "bona fide occupational qualification" (BFOQ). Underpinning this decision was the overriding fear that employers might otherwise hire only whites, claiming that this was essential to the smooth functioning of their businesses. In light of this statutory barrier, no court has ever accepted occupational need defenses where racially discriminatory employment practices have been challenged under Title VII. Paradoxically, however, where such practices have instead been challenged on Fourteenth Amendment grounds, courts have increasingly allowed a small number of professions--such as law enforcement and prison administration--to raise valid occupational need defenses. On these occasions, judges have distinguished between employers merely catering to client preferences and those whose race-conscious decisionmaking reflects a genuine concern about the functionality of their profession. As a result of these developments, the statutory and constitutional frameworks governing racial discrimination now provide contradictory responses to occupational need defenses raised by certain professions. This inconsistency was prominently on display in the recent case of Patrolmen's Benevolent Ass'n v. City of New York, in which Judge Scheindlin found that racially motivated employment decisions furthered the state's compelling interest in effective law enforcement--thereby satisfying the first prong of the court's equal protection analysis--yet held that the police were nonetheless barred from mounting an occupational need defense under Title VII. Against this backdrop, the Grutter Court further expanded the boundaries of the constitutional occupational need defense in two important respects. First, it suggested that a profession's reliance on racially diverse representation may warrant use of race-conscious admissions procedures at the stage of professional education. Logically, those professions citing an occupational interest in the continued use of affirmative action at universities should be doubly justified in granting preferences to racial minorities who have actually graduated and entered the labor market. Rather than consider the tensions that this reasoning would generate with current Title VII law, however, the Court simply reiterated that its holding reaches only educational--rather than hiring--decisions. Second, the Grutter Court identified occupational needs for diversity in fields such as business and law, which differ substantially from the more public-safety-oriented occupations that have successfully raised occupational need defenses in the past. By grouping together professions such as business and law with the military, whose unique features have entitled it to a special exemption under Title VII, the Court proceeded on the questionable assumption that these professions are equally dependent on racially diverse leadership. These problematic implications of the Grutter Court's approach were not lost on the dissenting Justices, who warned that occupational need logic could not be easily cabined within formal educational settings or confined to the field of law. Instead, as Justice Scalia lamented, the Court's reasoning might be used to support discriminatory hiring on the ground that it injects minority representation into a profession solely to enhance the "'cross-racial understanding'" of nonminority coworkers. Wary of the potential for occupational need defenses to shield discriminatory practices across a limitless array of professions, the dissenting Justices in Grutter sided with the framers of Title VII by resisting such arguments altogether. For all its intellectual clarity, however, the Grutter dissent's categorical rejection of occupational need claims proved no more nuanced than the majority opinion. Justice Scalia's scathing critique of the Court's logic, while useful in highlighting the extremes to which occupational need arguments may be taken, recognized no contexts in which such claims could be appropriate. Conspicuously absent from his dissent was any mention of the military's distinctive justification for affirmative action. Likewise, no consideration was given to other professions that might raise compelling arguments along similar lines. Taken as a whole, the Supreme Court's discussion of occupational need in Grutter proved unsatisfactory in two respects, both of which this Note addresses. First, both the majority and the dissent adopted a polarized, all-or-nothing approach to occupational need defenses instead of acknowledging the possibility that such arguments may be persuasive in certain contexts while pernicious in others. As an alternative to the Court's stark approach, what is needed is a theoretical framework for determining when occupational need arguments should be accepted as compelling state interests and when they should be rejected as pretextual grounds for racial discrimination. This Note begins to develop such a framework through the case study of the military, the profession that has most often framed its defense of affirmative action in terms of occupational need. Once the link between racial awareness and occupational performance is more precisely understood, we may then consider what institutional features make the military particularly dependent on racial diversity. To the extent that similar features exist in other contexts, the military experience should be seen as translatable, rather than entirely exceptional. Rather than draw an arbitrary line between higher education and work settings, this Note proposes that occupational need arguments should be evaluated according to the characteristics of each profession. Taking into account the social urgency of a profession as well as the degree to which its basic functionality depends on race-conscious decisionmaking, I argue that occupational need defenses should generally be limited to a small subset of professions that address public safety matters rather than extended to encompass professions such as business and law. While the appropriate outer bounds of the occupational need defense will undoubtedly remain subject to disagreement, the Grutter Court's treatment of occupational need claims clearly overlooks crucial differences in the nature and degree to which various professions rely on racially diverse leadership. The second shortcoming of the Grutter decision lies in its failure to address the growing divide between statutory and constitutional approaches to occupational need defenses. Where racial discrimination has been alleged, there is now a pressing need for a more unified legal response to such defenses. As a simple matter of intellectual coherence, Congress and the courts should agree on the extent to which American law recognizes that a person's race may affect her ability to perform certain tasks within an organization or profession. From a judicial perspective, the current inconsistency between the statutory and constitutional precedents in this area creates unnecessary confusion, undermining the clarity and force of opinions that must address occupational need claims. Finally, in the context of public employment discrimination, where Title VII and the Fourteenth Amendment are most obviously in tension, the success of occupational need defenses turns primarily on the nature of the allegations raised, which may be a function of little more than the plaintiff's degree of legal sophistication. Rather than countenance such anomalies, we should reconsider the proper place of such arguments within antidiscrimination law more broadly. Accordingly, this Note proposes that Congress amend the language of Title VII to remove the statutory barrier against race-based bona fide occupational qualification defenses. Courts should then permit occupational need defenses only in those narrow circumstances where a profession establishes that racial discrimination is vital to the essence of its business. Where state actors differentiate on the basis of race, courts should impose the additional requirement that a profession demonstrate how its disruption would compromise public safety. By building upon the doctrinal approach used in response to similar arguments in the sex discrimination context, courts could construct a limited occupational need defense that would reduce the potential for abuse while still allowing racial preferences where they legitimately further a compelling state interest. The Grutter Court's turn toward occupational need as a prominent justification for race-conscious decisionmaking is unsettling, even for proponents of affirmative action. The doctrine of occupational need is malleable and may be used to defend forms of racial discrimination that do not comport with societally held conceptions of racial justice. Insofar as we would balk at the notion of discriminating against racial minorities for the sake of preserving an occupation's survival, we should question whether concern over occupational needs is what truly motivates our support for affirmative action policies at institutions such as the University of Michigan Law School. If instead our commitment to affirmative action stems from some deeper value, then this value should be openly acknowledged and discussed rather than hidden behind the guise of an occupational need rationale. Indeed, occupational need arguments risk diverting attention from the social justice claims that would otherwise underpin the campaign for affirmative action. For these reasons, I sympathize with the outcome in Grutter yet remain wary of expanding the occupational need rationale as it pertains to race. To warn against the potential excesses of occupational need defenses is not to preclude their use under all circumstances, however. By advocating rigorous scrutiny of occupational need claims, this Note seeks to limit such claims to situations where race-conscious measures genuinely contribute to an occupation's functionality and where the smooth operation of that occupation is of paramount interest. Part I of this Note situates the Grutter outcome within the context of the Supreme Court's earlier affirmative action jurisprudence. This Part begins by examining how the Court's understanding of what constitutes a compelling state interest has expanded to include forward-looking or nonremedial justifications for affirmative action. The remainder of the Part outlines the salient features of what I have identified as the Grutter Court's occupational need rationale for diversity. Part II considers the most serious criticisms of the occupational need rationale, comparing claims that appear in the Grutter dissents with similar arguments that have arisen in previous cases and legislative debate. Part III evaluates the case for affirmative action in military higher education with an eye toward assessing which features make certain institutions better able to invoke occupational need arguments than others. Drawing lessons from the military case study, Part IV suggests a framework for how to approach occupational need defenses in the future, arguing that a limited occupational need defense would strike the proper balance between preserving occupational performance and creating a dangerous precedent that invites invidious discrimination. Part V then advances a two-part proposal for harmonizing the statutory and constitutional approaches to occupational need defenses. It concludes by underscoring the important role that judges must play in limiting race-based occupational need defenses once the statutory barrier against such claims has been removed.
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 the Constitution. There are, however, complex constitutional questions about vouchers that linger in Zelman's wake. This Note addresses one such issue that has only just begun to receive scholarly attention: Can states require private voucher schools--including religious schools--to comply with antidiscrimination policies, or would the enforcement of those policies violate the First Amendment rights of the schools? For example, could a state require a private school to admit racial minorities, women, and gays and lesbians as a condition for eligibility in a state voucher program? What if the school administrators object on principle--perhaps religious principle--to racial integration, coeducational schooling, or homosexuality? Doesn't the First Amendment protect the schools' views? The Supreme Court's jurisprudence does not provide easy answers to these questions, and the relevant body of case law is inconsistent. This Note seeks to make sense of the doctrine and to demonstrate that, as applied to private voucher schools, antidiscrimination laws can--and should--survive a First Amendment challenge. Part I provides a brief overview of the current status of voucher laws and proposals, and discusses the opposition of civil rights organizations to these laws. Part II then analyzes the free speech problems that may arise if states require voucher schools to adhere to antidiscrimination norms. I argue first that voucher programs are a form of "government speech through private actors," and that in such cases the Free Speech Clause does not preclude states from making viewpoint-based distinctions. The remainder of Part II deals with the possibility that courts will reject this analysis. I discuss the various constitutional tests to which courts may subject antidiscrimination requirements, and I argue that antidiscrimination policies should survive any of them. Because the Free Speech Clause poses the most complex problems for antidiscrimination policies, the bulk of the Note centers on this issue. Part III addresses issues raised by the Free Exercise and Establishment Clauses, and argues that religious voucher schools can also be bound to antidiscrimination policies without violating the schools' First Amendment freedoms. The only exception would be for clerical teacher employment disputes at religious schools; such suits are nonjusticiable due to a mixture of Free Exercise and Establishment Clause concerns.
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 judicially created exception traces its lineage back nearly two hundred years. Although the exception has always been construed narrowly, it grew narrower still in October 2002 when the Federal Circuit issued its opinion in Madey v. Duke University. Madey reformulated the experimental use doctrine and cast considerable doubt on its continued viability as a defense in patent infringement cases involving universities. As a result, university researchers accustomed to standing on the shoulders of giants by studying patented technologies freely may now be forced to rent space on those shoulders instead. This Comment argues that the Madey court erred when it characterized university research as driven by a business interest in competing for prestige, students, and research grants. Not only does this view oversimplify experimental use defense by causing it to turn on the status of the defendant rather than the nature of the contested use, but it also undermines the balance between innovation and access that lies at the heart of the Patent Act. The Federal Circuit should have instead crafted a more nuanced experimental use exception that protects educational experimentation on patented inventions. Such a rule might not help Duke in its dispute with Professor Madey, especially if the record on remand confirms that Duke was experimenting with rather than experimenting on Madey's invention, but it would allow future researchers to continue testing and teaching about patented inventions without fear of being sued.
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 support school choice pol- icies either public or private. They are largely satisfied with the schools in their neighborhoods and want to protect the physical and financial independence of those schools, as well as suburban property values, which are tied to the perceived quality of local schools. School choice threatens the independence of suburban schools by creating the pos- sibility that outsiders, especially urban students, will enter suburban schools and that local funds will exit local schools. When suburbanites face threats to their schools, they fight back, and they usually win. As this Article documents, sub- urbanites succeeded in insulating their schools from prior education reforms, including efforts to integrate schools and alter school funding regimes. A similar pattern is emerging in school choice plans, almost all of which work to protect the physical and financial autonomy of suburban schools and res- idents. If this pattern continues, school choice plans will be geographically constrained, will tend to be intradistrict, and will exist primarily in urban districts. These constraints will limit the ability of school choice to stimulate student academic improvement, racial and socioeconomic integration, and pro- ductive competition among public schools. Simply put, limited school choice plans will have limited impact, so that school choice will be neither a panacea, as its proponents argue, nor a serious threat to traditional public schools, as its opponents contend. To achieve the full theoretical benefits of school choice, we suggest that the choices offered to students must be broadened, especially in ways that will pro- vide greater opportunities for socioeconomic integration. In the final Part of the Article we consider ways to do so, including through increased access to government-funded, though not necessarily government-operated, preschools.