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February 25, 2008

Reflections on the OSLJ symposium (or other events areound the law school)

A few students sent me some reactions to different events related to last week's OSLJ symposium, and I got their permission to post those reactions in this space for all to consider.  One student had this reaction to the mock hearing on the Supreme Court schools case that took place Wednesday:

I just thought that it was interesting that there were 2 minorities [arguing] on the side of the Parents against the race-based system and 2 Whites for it.  Going along with our "whos" and "aesthetics matter", is sure does make it look like the system is bad if the group that it is supposed to help is opposing it.  I don't know how it was in the actual case, though.

When I was watching it, I thought about Kobe Bryant and how he had a white lady representing him.  It kinda showed that maybe he's not all bad and maybe he didn't rape that young white girl.  So, basically who represents your position matters. If it's someone who shares some of the same racial and gender characteristics as the opposing party, it helps to strengthen your argument.

Also, I thought that the school seemed to be pushing the position that the court took. Having the Dean serve as a justice, made it appear that the "quota, race-based" system was bad and that "race should only be one of the many factors used for admission system" was good.  I think it relates a lot to our class and legislation because the people who are chosen to represent a position affect the way others perceive it.

Another student had this reaction to one of the panels taking place on Friday:

Part of the Symposium this morning was Panel 4: Schools Using Race as a Factor After Parents Involved.  The subject in general clearly ties into the Equal Protection cases we’re looking at in Constitutional Law, but more important (to this blog) was the discussion of the Legislative Process in all of this.

Lia Epperson, from Santa Clara University School of Law, spoke about a proposed solution to the problem of desegregation.  Though she spoke at the speed of light, I did try to take notes about her presentation: She asserted the need for legislative involvement in the possible solution claiming,  “If there’s a way in which Congress can publicly support these changes they will have more strength. . . there’s a credibility that Congress has through its process. . . they can also hear viewpoints from different people.”

So this is clearly about process and brings up the weight that different interest groups [can bring to bear].  I thought it was a very helpful way to make the abstract ideas make more sense.  She added that “this is not a revolutionary concept, for Congress to be more involved.”  This is shown by Brown v. Board of Education, because not much happened with Brown until the Civil Rights Act, then there was a significant change because of the power to enforce that came with the Act.  This is done via funding, post-Brown: it was schools in the deep south that were poorest, and they needed the funding ... to stop segregating.  Additionally the Emergency School Act, which was championed by Nixon, was about fostering integration in all schools, regardless of previous segregation. She discussed No Child Left Behind as the largest foray into education involvement, which shifted away from state and local bodies in favor of federal power. 

There is history of bipartisan support for integration.  Kennedy’s concurrence in Parents Involved, is important for predictive value if nothing else. His suggestion is that the executive and legislative branches should be permitted to consider race in these policies. Thus Congress could now be encouraging voluntary efforts of integration.

Her goal is to make a more narrow plan to garner bipartisan support, which is as follows: 1) Funding research, provide grants to find out what works in reducing racial isolation and disparities (look at Kennedy’s suggestions, look at successful programs), 2) beef up transfer options under no child left behind 3) and expand title 6 enforcement power. “Congress should be a corrector of the courts” thus, they should challenge educational practices that have a discriminatory effect.  She concluded explaining that the Legislature and the President must work together here, and that will depend on next administration. Federal government should play a more active role, and there should be more funding, which is Congress’s power.

Of course, both these students earned serious Berman bonus points for providing such great blog copy.  And, of course, other students are highly encouraged to comment on these comments in the comments and/or to otherwise make a similar serious and studious efforts to connect stuff going on around the building to stuff going on in our class.

February 25, 2008 in Current Affairs | Permalink


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This isn't directly on point with what we've been discussing in class and with the readings, but I found it interesting...


The article is especially interesting in light of this weekend's law journal symposium on the school integration cases, and our reading of Plessy v. Ferguson and Brown v. Board of Education this week in Con Law.

Here, we have a Georgia Board of Education separating students on the basis of sex. The schools, I assume, will be "separate but equal," and are meant to quell violence and encourage students to pay better attention (something studies I've read happens when boys and girls aren't distracting each other).

Still, this begs some serious questions for us...What kinds of separation are ok? At what point are the benefits of integration (more expansive world view, better understanding of how other cultures and the opposite sex operates) outweighed by a concern for improved education and safety in schools?

Additionally, the fact that the majority of the students in the portions of the district to become single-sex are black raises alarm bells. The fact that the area is rapidly gentrifying (and white-ifying) smacks of thinly veiled racial segregation. I welcome discussion on this point, as the sex/race distinction is one that escapes me (and one that I don't think passes muster under the Civil Rights Act).

While I recognize that this board edict is not "legislation" per se, it is analogous in that the only recourse the parents here have is likely legal. Let's say the Georgia Legislature decided to pass just such a law in inner-city areas. Would that be ok under our analysis? What would be required of the writing? Would a state-wide law get around any federal conflicts?

We should be aware that this case is out there, because I have a feeling we might be addressing it in some of our upper-level courses before all is said and done...

Posted by: Brad Cromes | Feb 26, 2008 8:46:47 PM

In regards to the first comment, it's kind of like a Nixon goes to China deal. What makes Justice Thomas' arguments against affirmative action noteworthy, because he is of the class that affirmative action is supposed to help. When you have minorities arguing against race based distinctions I think it sends a more powerful message. We're the beneficiaries and we are telling you we don't want it. Hmm...

Posted by: Alex | Feb 26, 2008 9:55:30 PM

I am intrigued by Prof. Epperson’s second proposal—to “beef up” transfer options under NCLB.

Beefing up transfer options could very well have a discriminatory effect. Transfer options include charter schools. When Ohio first passed its charter school legislation over 10 years ago, the schools were limited to the Big 8 districts, then to the Big 21 (big is supposed to be in terms of city size, although Lorain is art of the Big 8, even though some suburban districts are bigger. So I think “big” is now more of a euphemism for urban.) Anyway, many charter schools are less integrated than the districts in which they are located. Some purposely take on a theme that is designed to attract certain kinds of students, like offering an Afro-centric curriculum. Others are open to anyone, but it’s not like many people know about charters—so many of them are just based on word of mouth, which can, of course, work against integration efforts, in that the word of mouth is typically spread in already segregated cities. So I’d be curious as to what Prof. Epperson would say in response.

Next, a brief response to Brad. That’s very interesting! There has been in recent years a big push toward single sex education, particularly in urban areas. Toledo Public has a few such schools, and Cleveland (again, Cleveland public schools) opened four this year. But the idea of a whole district dividing based on sex is very novel. A few years ago the Bush admin passed new rules to allow districts to expand with single sex classes and schools—-so long as the enrollment was voluntary. (check out this 2006 NY Times article for more, http://www.nytimes.com/2006/10/25/education/25gender.html?pagewanted=1&_r=1 ).

There is a lot of support for single sex ed, and of course, a lot of opposition. But if enough parents start choosing single sex for their children or less racially integrated schools, and as schools become more market-driven, we will likely face more battles between what parents want for their own children, and what the government thinks is best.

Posted by: stephanie | Feb 27, 2008 12:14:11 AM

In response to Brad’s comment: It seems to me that people probably made the same types of arguments for segregating schools (less distracting and a way to control violence). I personally think it is silly. We don’t live in a segregated/single sex world/work place. A necessary part of what you get out of school is being able to interact with others. But since there isn’t such a negative connotation associated with single sex schools as there was with racially segregated schools and neither sex is being forced into these schools then it probably won’t have the same effect, at least until there is a clear difference in the quality.

Prof. Berman's posting: My knowledge of NCLB is very limited and having friends that teach in these poorer areas. I would have to defer to those, like Stephanie, who have also taught in these types of areas. I don’t know anything about charter schools.

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