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  • Batson for Judges, Police Officers & Teachers: Lessons in Democracy From the Jury Box

    In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine the legitimacy of these important civic institutions. It deepens mistrust between minority communities and the justice system and exacerbates the failures of a public education system already lacking accountability to minority students. But there is hope for rebuilding the trust, accountability and legitimacy of these civic institutions on behalf of minority citizens. There is one place where we have demonstrated a deeper commitment to our guarantee of democratic equality on behalf of minority citizens and exerted greater effort to that end than perhaps in any other domain of our civic life—the jury box. This paper recounts this important history and explores the political theory underlying the equal protection jurisprudence of jury selection. It then applies these lessons gleaned from the jury context to the constitutional defense of efforts to achieve greater racial diversity within the judiciary, law enforcement, and public education, all of which are as important to the legitimacy of our democracy today as the jury has been throughout American history.

  • Schooling the Police: Race, Disability, and the Conduct of School Resource Officers

    On March 25, 2015, police officers effectuated a violent seizure of a citizen in Kenner, Louisiana: [T]he police grabbed her by the ankles and dragged her away [from the tree]. . . . [She was] lying face down on the ground, handcuffed with her face pressed so closely to the ground that she was having difficulty breathing due to the grass and dirt that was so close to her nose and mouth. An officer was kneeling on top of her, pinning her down with a knee squarely in [her] back. Several other officers, as well as several school administrators, stood around the scene watching. [She] was crying and yelling[,] “Help, I’m hurting.” The handcuffed individual was a Black, ten-year-old child who has been diagnosed with autism. On the day of the incident, she “began acting up in class, running around the classroom, climbing on desks, and knocking down classroom chairs.” After she climbed out of the classroom window and up a tree on school property, school officials called the police. Instead of responding to the situation in a manner appropriate for a fourth grader with autism, officers responded with handcuffs and a knee in her back. In Mississippi, a twelve-year-old diagnosed with bipolar disorder “was handcuffed in front of several classmates and put in the back of a police car outside of [his middle school]” after “los[ing] his temper in an argument with another student, and hit[ing] several teachers when they tried to intervene.” Following the incident, the boy was briefly admitted to a mental health facility, then “charged with three counts of assault.” In Virginia, a Black eleven-year-old boy diagnosed with autism was charged with disorderly conduct and felony assault of a police officer for his acts of kicking over a trash can in school and trying to pull away when a school resource officer grabbed him. Unfortunately, the facts in these elementary school students’ cases are not rare. Over the past few decades, schools across the country have adopted extremely harsh discipline policies to control student misbehavior that may be caused by an underlying disability.

  • Mainstreaming Equality in Federal Budgeting: Addressing Educational Inequities With Regard to the States

    Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme will require Congress to acknowledge that poverty in the United States is not a mere set of behaviors and attitudes but is intricately linked to race and class. Mainstreaming equality schemes require that public bodies assess the impact of their policies on equality of opportunity and monitor any adverse impact on the promotion of equality of opportunity. This Article describes how such a scheme would address disparities among students. Second, this Article argues that Congress should define beneficiary groups based on characteristics additional to socioeconomic status, including measures of cultural isolation and local tax revenue contributed to public education. Third, this Article establishes that a federal mainstreaming school funding scheme based on “layered disadvantage” and its multiplicative effects will both acknowledge and address long-time, covered attitudes about race, poverty and privilege in the United States and the ways in which those attitudes continue to enforce a paralyzed outcome, especially for African American students within public schools. Finally, by examining mainstreaming equality models implemented in the European Union, this Article considers in detail the methodology for conducting mainstreaming equality within a federal school funding scheme as implemented by Congress with respect to the individual states.

  • The Keyes to Reclaiming the Racial History of the Roberts Court

    This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States— legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity. The Article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black- White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer accurately describe the current reality of shifting and transforming patterns of race relations in the United States. In order to reclaim the history of race from the Roberts Court, the Article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first Supreme Court case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyes and the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.

  • States Taking Charge: Examining the Role of Race, Party Affliation, and Preemption in the Development of in-state tuition laws for undocumented immigrant students

    Part I of this Article details both the legislative and legal history of undocumented immigrants’ access to education in the United States. Part II then describes the current U.S. state laws in effect regarding in-state tuition for undocumented immigrant students at state-funded colleges and universities. Part III further explores the development of laws and policies with a keen focus on potential correlations between (1) the racial composition of state legislatures and the passage of in-state tuition policies; (2) the race of governors and the passage of in-state tuition policies; (3) partisan composition of state legislatures and the passage of in-state tuition policies; and (4) party affiliation of governors and in-state tuition policies. Part IV describes the concept of preemption and discusses the extent to which preemption has impacted the state statutes identified in Part II of this Article. Finally, Part V discusses the practical and normative implications of this research.

  • Racial Cartels

    This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values that depended not just on the superior quality of the housing stock but also on the racial composition of the neighborhood. Describing historical exclusion as anti-competitive cartel conduct highlights three aspects of discrimination that other descriptions obscure. First, compared to conventional theory, a racial cartel story emphasizes the material benefits - higher wages, higher property values, greater political power - that Whites derived from anti-competitive exclusion. Second, compared to individualist accounts, the cartel framework emphasizes the collective-action nature of historical discrimination. Third, calling historical exclusion cartel conduct can help to reframe antidiscrimination law as a type of antitrust legal intervention, designed to remedy persistent effects of past anti-competitive exclusion.

  • “The Prejudice of Caste”: The Misreading of Justice Harlan and the Ascendency of Anticlassificaiton

    This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns to the nineteenth century to offer an alternative reading of the opinion. It argues that by time Harlan invoked the caste metaphor in Plessy, the caste metaphor was part of a longstanding tradition of reasoning about the moral stakes of status hierarchy and social subordination. It examines the emergence, in the nineteenth century, of the image of caste in abolitionist rhetoric and in debates over the ratification of the Fourteenth Amendment during Reconstruction. The Article further challenges the conventional reading of Harlan's dissent, by considering the persistence of the caste metaphor in the context of Brown v. Board of Education and its aftermath.

  • Sliding Towards Educational Outcomes: A New Remedy for High-Stakes Education Lawsuits in a Post-NCLB World

    Sheff v. O'Neill ushered in a new wave of education reform litigation that may challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Note proposes a new desegregation remedy-the sliding scale remedy-to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate right, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.

  • From Pedagogical Sociology to Constitutional Adjudication: The Meaning of Desegregation in Social Science Research and Law

    In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. It argues that whereas social scientists see desegregation in terms of social change requiring integration, for lawyers desegregation is a remedy the content of which is shaped by the nature of the litigation. The imperatives of law and social science have in the past coincided in a jurisprudence of affirmative action but the recent school assignment cases demonstrate the extent to which they have now diverged. This divergence underlies the indeterminacy of the desegregation mandate and provides an analytical framework for a theory of the role of the court expert in schools desegregation.

  • Education and Labor Relations: Asian Americans and Blacks as Pawns in the Furtherance of White Hegemony

    Asian Americans and Blacks have been, and continue to be, racialized relative to each other in our society. Asian Americans and Blacks have come to occupy marginalized positions as the polarized ends on the economic spectrums of education and labor relations, with an expanding "Whiteness" as the filler in the middle as Whites manipulate the differing interests of both subordinated groups to align with White (the dominant group's) interests. Although Whites purport to champion the interests of one subordinate group over the other, in reality the racialization of Asian Americans and Blacks in our country is rooted in the preservation of White hegemony; this racialization is harmful to both subordinate groups and serves to reinforce White hegemony by exploiting areas of White privilege and domination, particularly in the context of education and labor relations. However, many mainstream theories and historical attempts to characterize the racialization of Asian Americans and Blacks (the theory of a monolithic form of racism that just happens to result in differing effects on Asian Americans and Blacks, the theory of a Black- White binary, the racial triangulation of Asian Americans against Whites and Blacks, and the "model minority" myth) fail to fully describe and capture the different positions within a multidimensional social hierarchy that Asian Americans and Blacks occupy. Therefore, we must look beyond these theories in order to fully understand race relations and the position of Asian Americans and Blacks in our society.