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  • The State Judiciary’s Role in Fulfilling Brown’s Promise

    After a brief overview of school finance litigation since Rodriguez and school desegregation cases since Brown, Part I argues that the "adequacy" model of reform addresses many of the underlying concerns of the equity model without sharing its methodological and strategic shortcomings. Part II focuses in more detail on Campaign for Fiscal Equity v. State ("CFE"). Part III argues that education reform that is implemented after a finding that a state has violated a state constitutional duty should: (1) equalize funding to the extent necessary to guarantee certain minimum necessary inputs such as qualified teachers, small class sizes, adequate physical infrastructure, and other instrumentalities of learning; and (2) take seriously Brown's proclamation that racial separation is inherently unequal. Part IV encourages courts to structure education reform remedies that: (1) envision a firm but limited judicial role to protect the constitutional rights of minorities from majoritarian failures without exceeding the courts' limited expertise and authority; (2) define adequacy specifically enough to minimize inter-branch tension and provide political cover for legislators who must make difficult decisions to implement education reform; and (3) prioritize collaborative decision-making involving courts, legislatures, state agencies, local school boards, unions, parents, local businesses, and civic organizations, partially through a process analogous to negotiated rulemaking in the administrative law context. Part V borrows several elements from environmental law and proposes a method for implementing education reform that makes state legislatures ultimately accountable for educational outcomes. Finally, Part VI explores some of the daunting challenges faced by education reform efforts and suggests that rigid ex ante injunctions may fail to account for the wide range of obstacles faced by school districts.

  • Conscious Use of Race as a Voluntary Means to Educational Ends in Elementary and Secondary Education: A Legal Argument Derived From Recent Judicial Decisions

    This paper provides an in-depth examination of the ten recent court decisions concerning race-based student selection processes. As these cases will illustrate, school districts face increasing demands to justify any race-conscious selection process. The significance of meeting the demands and the implications for what appears to be an evolving legal theory is national in scope and broad in application. Some have even argued that some of these cases mark a departure away from the Court's thinking in Brown v. the Board of Education. It should also be noted that each of the cases mentioned above occurred in the context of some form of school choice, which heightens the significance of the research and the implications of its findings.

  • The Children Left Behind: How Zero Tolerance Impacts Our Most Vulnerable Youth

    The Michigan Journal of Race & Law Symposium, February 8th and 9th, 2002, at the University of Michigan examined the issue: Separate but Unequal: The Status of America's Public Schools. In the past, children of color were expressly denied an equal education on the basis of their race. Today's policies deny many children of color access to educational programs and supports, for reasons that are neutral on their face, with devastating consequences to the students, their families and their communities. The following article explores the concerns and experiences of a public service agency with the growing application of "Zero Tolerance" policies and practices to schools and school children. The purpose of this article is to increase awareness of the nature and effects of zero tolerance policies and to explore the resultant issues that must be addressed. In the end, the persons most disproportionately affected include children of color but when zero tolerance policies result in a failure to educate some children, the consequences impact not only those children, but all of us.

  • Purchasing While Black: How Courts Condone Discrimination in the Marketplace

    Given the sweeping language of § 1981 and 1982, it cannot be that sellers of goods can engage in intentional discrimination, so long as they make relatively minor attempts to cover it up. By exploring the interaction between substantive law, procedural law, legal culture, and real-world context, Graves seeks to demonstrate that judges cannot offer any legal or practical justification for heightened pleading requirements in § 1981 and 1982 actions. Through this argument, a conclusion is reached that § 1981 and 1982 plaintiffs must be given the same opportunity to litigate their claims that virtually all other plaintiffs are given. While this conclusion might seem basic, it is currently being ignored in many courtrooms across this country. The overwhelming majority of literature in the field makes the case against heightened pleading requirements by arguing that these requirements violate the Federal Rules of Civil Procedure. The impropriety of heightened pleading requirements under the Federal Rules, however, is not the final deduction in an argument against heightened pleading requirements; it is a starting point. Once we understand that heightened pleading requirements violate the Rules, we can ask why judges continue to impose them. We can, thus, attack the principles underlying judges' decisions to impose heightened pleading requirements.

  • A General Theory of Cultural Diversity

    This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited by anti-discrimination law does not really resolve much, as cultural discrimination carries the risks of many of the evils our anti-discrimination laws are designed to address. Therefore, this Article concludes with proposals for regulating cultural discrimination so that fair discrimination based upon specific cultural facility, ranging from communication skills to cultural insights, is not accompanied by the potential for parasitic cultural discrimination.

  • The Profiling of Threat Versus the Threat of Profiling

    This speech covers three points. First, a brief summary of the failed federal criminal prosecution of Wen Ho Lee is given. Second, Wu talks about the racial profiling used in this case. Third, Wu talks about the possibilites for Asian Americans and other racial minorities to engage in principled activism to overcome these unfortunate trends.

  • The Tension Between the Need and Exploitation of Migrant Workers: Using MSAWPA’s Legislative Intent to Find a Balanced Remedy

    This Comment concludes that the recent Maine federal district cases represent an irreconcilable spike in a national and international trend to afford more protection to a vulnerable class whose resources are the object of urgent demand. However, the search for a proper remedial weight in the balance between migrant worker protection and the provision of competitive farm labor is not a new problem.

  • Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities

    This Article links unscientific, race-based medical research to a broader, institutionalized pattern of racial profiling of Blacks in clinical decision-making. Far from providing a solution to the problem of racial health disparities, this Article shows that race-based health research fuels a collection of dubious background assumptions, creates a negative profile of Black patients, and reinforces taken-for-granted knowledge that leads to inferior medical treatment. This form of racial profiling is unjust, and also causes countless unnecessary deaths in the Black population.

  • When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies

    The author proposes that in an ongoing debate on questions concerning the possibility of racial or other types of invidious discrimination by public institutions, we should apply a prima facie standard to these claims in the public arena. In other words, if African Americans or Latinos say that they have been the victims of racial profiling, we should not ask for conclusive proof in the strictest statistical sense; rather, if they can present some credible evidence beyond anecdotes, some statistics that indicate that we may, indeed, have a problem, the burden should then shift to the public institution-here, law enforcement agencies-to collect the information necessary to either confirm or dispel the perception that a problem exists. This seems an important ingredient to the proper understanding and resolution of societal policy arguments and disagreements, especially when the governmental action alleged has such dire consequences for the individuals affected and for the integrity and legitimacy of the institutions themselves. When public confidence in our most vital institutions of government is undermined, as is clearly already happening with racial profiling, we ought not be satisfied with the declaration that conclusive proof is not available, especially when access to that proof is in every way controlled by the institutions accused of wrong doing. Instead, when victims present a prima facie case, the burden should shift to the government to show that its conduct is above reproach. Only that type of standard for our public debate on such crucial issues can ensure the legitimacy of our public institutions.

  • Seeking Redress for Gender-Based Bias Crimes- Charting New Ground in Familiar Legal Territory

    This Essay will analyze how courts have defined gender-motivation, focusing on the Civil Rights Remedy cases decided before the law was struck down, in an attempt to cull from those cases the standards federal courts have used to assess gender-motivation. The article will first provide an overview of existing and proposed laws that offer some form of redress for gender-motivated crimes. It will then analyze cases decided under the Civil Rights Remedy, focusing on two key issues that have arisen as policymakers struggle with whether and how gender-based bias crimes fit in the rubric of hate crimes legislation. The first of these issues is how courts have assessed whether claims of domestic violence reflect discriminatory motivation, and what type of evidence they have found useful in that context. The second issue is how courts treated VAWA civil rights claims based on allegations of sexual assault, and what, if any, evidence, in addition to allegations of sexual assault, they found to indicate gender-motivation.