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A History of Hollow Promises: How Choice Juisprudence Fails to Achieve Educational Equality
This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms and education policy initiatives to address the scope of the problem of educational inequalities. This essay contextualizes the issue to demonstrate how policies have reinforced a dominant narrative about race that is counter to the goal of ending educational disparities and continues to harm individuals and communities of color even as they try to respond to these issues.Urban Legends, Desegregation and School Finance: Did Kansas City Really Prove That Money Doesn’t Matter?
This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been cited as proof by conservatives that no correlation exists between educational outcomes and academic performance. The final section uses national and state level data on school funding and student outcomes to determine whether their assertions are correct.Reading, Writing, and Reparations: Systemic Reform of Public Schools as a Matter of Justice
This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain its tradition of segregation. Part III places that discrimination in historic context, examining Virginia's long history of denying educational opportunities to African Americans. This section demonstrates that the state's intransigence in the face of the Brown decision was but one incident in a centuries-old chain of state-imposed constraints on education for Blacks. Starting with proscriptions against literacy for slaves, and moving to legislation designed to disfranchise Blacks after emancipation, among other means, Virginia used and abused public education to maintain an oppressive social order in which African Americans would perpetually be at the bottom. As a result, Part IV concludes that the Brown Fund Act falls far short of remedying the scope of the state's wrongdoing. In the face of, quite literally, centuries of government abuse of its authority to purposefully exclude its citizens, reparations-that is, a remedy designed to rectify a profound injustice that reverberates today-are necessary. This Part then briefly touches upon the varied forms reparative remedies might take to mend the breach.The Sacred Way of Tibetan CRT Kung Fu: Can Race Crits Teach the Shadow’s Mystical Insight and Help Law Students “Know” White Structural Oppression in the Heart of the First-Year Curriculum? A Critical Rejoinder to Dorothy A. Brown
Part I of this Article uses a quasi-parable, in which Dorothy Brown is a Tibetan Master who teaches law students CRT Kung Fu, the monastic fighting skills by which they will acquire the Shadow's mystical insight to "know" the heart of the first-year curriculum. Part II challenges the organizing principles and content on which Brown's Critical Race Theory purports to critically interrogate traditional legal doctrine, applying a New Age Philosophical critique as well as agency theory to crack dealing in Spanish Harlem. I use this case study to argue that crack dealers deliberately and purposefully choose extra-legal economic opportunities, even at the expense of their neighbors and community. The Conclusion demands that Race Crits think outside of the white structural oppression logical box.From Discourse to Struggle: A New Direction in Critical Race Theory
To commemorate the Michigan Journal of Race & Law's tenth anniversary, they hosted a symposium in February 2005 that marked a shift within critical race theory. Entitled "Going Back to Class?: The Reemergence of Class in Critical Race Theory," the symposium brought together speakers, students, Journal alumni, and members of the community to begin a fuller examination of the relationship between race and class.Challenging the Bounds of Education Litigation: Castaneda V. Regents and Daniel V. California
This Note argues that by combining the normative suasion of educational finance litigation with the political imperatives manifested in affirmative action law and practice, those who seek to improve the quality of secondary education and expand access to higher education would likely effect greater change than they would working independently. Under the appropriate political and legal circumstances, access to public higher education ought to be treated as something akin to a fundamental right, the unequal distribution of which constitutes a violation of equal protection for students of color and for economically disadvantaged students. Using the Castaneda and Daniel lawsuits to probe the rigid contours of school "finance" reform litigation and the overly formal conceptions of race-based preferences that pervade discourse about affirmative action, the author argues that these cases provide promising examples of the ways in which advocates for diversity in higher education may capitalize on the political will of the people and the structure of the state system of public education to advance an agenda that simultaneously improves secondary education while diversifying institutions of higher education. Although this Note concentrates on two cases from California, it fundamentally concerns what advocacy for educational equity will look like throughout the country for the next generation of students of color and of economically disadvantaged students. These cases, though born of the particularities of California's state education system, do not embrace strategies unique to California. Rather they are harbingers of a promising nationwide trend.Fair and Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis
Part I of this Note proposes both remedial and instrumental justifications for applying disparate impact scrutiny to admissions policies. This Part argues that disparate impact analysis should be applied to higher education as a remedy for the disadvantage minority applicants face as a result of historic and ongoing intentional discrimination and that schools are culpable for unnecessarily utilizing admissions criteria that have this discriminatory effect. The result of applying disparate impact analysis will be admissions policies that produce diverse student bodies while remaining facially neutral with regard to race. Part II proposes that a necessity standard, unique to the higher education context, be fashioned such that admissions policies are made as equitable as possible while not undermining a school's ability to achieve its legitimate admissions goals. The proper necessity standard would grant schools latitude to define their institutional goals, but at the same time require that their admissions criteria be the least discriminatory methods of achieving these goals. Finally, Part III shows that a court can feasibly and effectively apply disparate impact analysis to admissions processes despite their complexity and variety.Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents
In the Supreme Court of the United States. Barbara Grutter V. Lee BollingerPrologue: Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents
The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education.Putting Black Kids into a Trick Bag: Anatomizing the Inner-City Public School Reform
Part I of this Article discusses the history of Brown, and the legal and political barriers that prevented the nation from fulfilling Brown's promise. Part II, will examine the phenomenon of White flight, which resulted from the efforts to implement the court-ordered desegregation of public schools. The political and economic effects of White flight on school reform efforts will also be examined. Part III will provide the reader with possible explanations for why school desegregation failed. The author will argue that the unexpected complexity of the task of desegregation, the lack of a unified direction among the judiciary, and local political entities, as well as beliefs about the effects that school desegregation would have on White children, prevented desegregation efforts from being successful. Part IV will analyze the various alternatives to court-ordered school desegregation that developed as a result to the legal, social and political barriers, which prevented court-ordered desegregation from taking place. Part V briefly surveys the school-reform efforts of four cities. Part VI discusses the role of school finance in relation to student achievement. The property tax, as the major source of funding for public schools, will be examined, as well as the effects of funding disparities between affluent and poor school districts. Part VII follows with a discussion of the use of testing as a method of school reform.
