Legal scholarship on education law covers thewaterfront this week. This week we note articles on affirmative actionjurisprudence, income disparity in education, and that Brigham YoungUniversity's Education and Law Journal is out with several articles oneducation law and reform.
New Fisher scholarship
Leslie Yalof (PaceLaw School) has published The Inevitable Irrelevance Of Affirmative ActionJurisprudence, 39 J.C. & U.L. 1 (2013), excerpted below:
Fisher v. University of Texas presents an Equal Protectionchallenge to the University of Texas' race-preference admissions policy. Inthis article, I am proceeding on the assumption that, in its decision, theCourt will not abolish affirmative action programs wholesale, if it addressesthe merits of Abigail Fisher's challenge. … Based on the existing precedent,the Court can decide the Fisher case in any of three ways. First, the Courtcould avail itself of the opportunity presented by Fisher to expand the constitutionalpermissiveness of considering race as a factor in admissions decisions. Giventhat four of the eight justices deciding this case have made clear their strongopposition to the use of race in this context, this scenario is highlyunlikely. At the other end of the spectrum, the Court could find that there isno longer a compelling governmental interest in the use of race in theadmissions process, thereby causing the sun to set on affirmative actionadmissions policies much sooner than Justice O'Connor predicted in her majorityopinion in Grutter. This is an equally unlikely scenario because four of theJustices have already confirmed their commitment to the compelling governmentalinterest in using race-preference policies to achieve viewpoint diversity. Themost likely outcome is that the Court will rule very narrowly, striking downthe UT program as not being narrowly tailored, while leaving intact the Court'spreviously articulated finding of a compelling governmental interest indiversity education. Thus, colleges and universities will remain free toconstruct some type of race-preference admissions policy in an effort to ensurediversity among their classes. Despite the Court's commitment to upholding thenarrow use of race in the admissions process, however, most institutions willbe unable or, more likely, unwilling to construct constitutionally permissiblerace-preference admissions programs. … For this reason, regardless of how theCourt decides, Fisher will ultimately be inconsequential to school admissionsdecision-making and, therefore, will do little more than highlight the growingirrelevance of affirmative action jurisprudence.
In Race and Income Disparity: An Ideology-Neutral Approachto Reconciling Capitalism and Economic Justice, 3 Colum. J. Race & L. 49 (2013), Robert Hardaway(University of Denver, Sturm College of Law) examines the continuing problem ofideological battles between political groups and coalitions that have frustrated thequest for solutions to widening income and wealth disparities:
The fault for society's failure to adequately address incomedisparity along racial lines does not lie exclusively with any one politicalgroup or party. Both liberals and conservatives have permitted ideology tocloud their search for meaningful solutions. If these solutions are to befound, conservatives must discard ideological preconceptions in such areas asabortion rights, family planning, and drug policy; liberals must likewisediscard ideology in their approach to tax policy, immigration, housing, andeducation. Both conservatives and liberals must discard ideologicalpreconceptions and abandon politically seductive, but ultimately demagogic andself-defeating policies relating to international trade, and residentialexclusionary policies, particularly in the areas of zoning.
In Misshaping the River: Proposition 209 and Lessons for theFisher Case, 39 Journal of College and University Law 53 (2013), William C. Kidder relates five lessons for Fisherlearned from California's affirmative action ban, Proposition 209. Kidder isthe Assistant Executive Vice Chancellor at UC Riverside, but notes that thearticle expresses his personal views rather than the views of the University ofCalifornia. Below is an excerpt of Misshaping the River:
California's experiences with and responses to Proposition209 bear on the Fisher v. University of Texas at Austin case with respect toboth questions of compelling interest and narrow tailoring. … This articleadvances the following findings and conclusions:
Lesson #1–At the University of California, which is subjectto an affirmative action ban, recent survey data from eight campuses confirmsthat the campus racial climate is significantly more inhospitable for AfricanAmericans and Latinos than at UT Austin and two other peer universities….Relatedly, on the question of “critical mass” versus racial isolation that wasdiscussed at length during the U.S. Supreme Court's oral argument in the Fishercase–and that was one key consideration taken into account by UT Austin indevising its admissions program–the comparative data in this article suggestthat the threat of educational harm associated with racial isolation is veryreal (particularly for African Americans) and should not be minimized oroverlooked.
Lesson #2–Contrary to recent claims by groups opposingaffirmative action, Proposition 209 (“Prop 209”) triggered a series ofeducationally harmful “chilling effects.”
Lesson #3–Affirmative action critics supporting Petitionerare propagating two related myths about credentials and performance. First,they scapegoat affirmative action as the overwhelming cause of racial/ethnicdifferences in SAT scores at UT Austin and elsewhere, when this relationship isquite modest for reasons stemming from the mathematics of admissions. Secondly,the critics stubbornly insist that affirmative action causes substantial“mismatch” effects on underrepresented minority student performance when infact there is a voluminous social science literature indicating thataffirmative action at highly selective institutions has a net positive effecton graduation rates and other important outcomes.
Lesson #4–While some argue in favor of class-basedaffirmative action in lieu of race-conscious programs, UC's atypically largeenrollment of low-income undergraduates is strong “natural experiment” evidenceverifying that class-based policies are not effective substitutes forrace-conscious policies.
Lesson # 5–The experience of: UC Business Schools and UCLaw Schools after Proposition 209 provide compelling case studies regarding theneed for race-conscious affirmative action.
Other articles this week address the future of legaleducation. While we would normally leave articles on the legal education debateto our colleagues at The Legal Whiteboard, we highlight a few this week that touch upon equity ineducation.
Inequities and thefuture of legal education
Brian Tamanaha (Washington University Law) has posted The Failure of Crits and Leftist LawProfessors to Defend Progressive Causes (Stanford Law & Policy Review,forthcoming) on SSRN.
In the article, Tamanaha confronts liberal legal academicsfor "perpetuating the profoundly warped and harmful economics of legaleducation" and encourages them to "take personal responsibility forwhat has happened, and to engage in collective action to do something to alter theeconomics of our operation."
Responding to Tamanaha's Failing Law Schools book, MichaelA. Olivas has written Ask Not for Whomthe Law School Bell Tolls: Professor Tamanaha, Failing Law Schools, and(Mis)Diagnosing the Problem, 41 Wash. U. J.L. & Pol'y 101 (2013).Olivas "call[s] us to action as a community, for threats to the universeof legal education will affect us all to our collective detriment and to thatof our students." Here is an excerpt of his abstract:
The real Cassandra, however, is Professor Brian Z. Tamanaha,whose apocalyptic book Failing Law Schools is a shrill call to arms, asubstantial work of powerful charges and dire solutions, well-written andarriving at a crucial time in legal education, in the United States andworldwide. I believe he holds powerful diagnostic skills and has astoryteller's narrative, but I believe his solutions are substantially wide ofthe mark, and would violate the code that remedial actions should, at theleast, do no harm. If he were simply overstating issues or being a provocateurfor the sheer sake of being one, as other critics have done, I would simply lethim stew in his own juices. But his devastating critique has a number ofaccurate observations, ones I share, so laying out his arguments and hiscritical architecture is necessary to see how the analytic second step–hisremedies–can be so wrong. Indeed, rather than merely noting his architecturalframework, I will note the arithmetic of his remedies, and attempt to show whyhe should receive only partial credit for his math homework.
In The Job Gap, the Money Gap,and the Responsibility of Legal Educators, 41 Wash. U. J.L. & Pol'y 1(2013), Deborah Jones Merritt (MoritzCollege of Law, The Ohio State University) addresses economic reform in legaleducation:
Today's law school graduates facea grim prospect: more than half of them will not make a career practicing law.Some of those graduates will enjoy jobs in fields allied with law, but manywill settle for work with little connection to the degree they earned. … Thesetrends generate two gaps. The first is between the number of students earninglaw degrees and the number of lawyering jobs available to them. The second isbetween the tuition that students pay and the early-career salaries theyreceive–if they are fortunate enough to find lawyering work. I explore thesetwo shortfalls, the job gap and the money gap, in the first and second sectionsof this Essay. In the final section, I turn to an equally troubling lacuna: thefailure of law schools to acknowledge the harms their graduates are suffering.This responsibility gap is one that we, as educators, have the power to bridge.As I explore the shortfall between our schools' actions and ourresponsibilities, I offer several concrete steps to close that gap.
In An Essay onRebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375(2013), Jack Graves (Touro Law) describes ways to reduce risks and improve legal educationoutcomes for the bottom half of students in the bottom half of all law schools.Focusing on this group is essential to rebuilding legal education, Graveswrites, because "[t]his group represents 25% of current law graduates,and, as a group, they almost certainly bear a disproportionate share of theburden created by our broken educational model. While the suggestions thatfollow will in some ways specifically target this “bottom quartile,” I believethey would materially improve legal education for a substantial majority of allprospective students."