Education Policy

  • October 27, 2010
    Education Policy
    The head of one of the country's largest conservative lobbying groups, the Family Research Council, says gay youth are prone to depression and suicide because they are "abnormal," not because they are victims of harassment or bullying. The Huffington Post notes Tony Perkins's comments to NPR about "how religious movements fit into the anti-gay bullying equation."

    Perkins maintained, "There's no correlation between inacceptance of homosexuality and depression and suicide. These young people who identify as gay or lesbian, we know from the social science that they have a higher propensity to depression or suicide because of that internal conflict."

    This week the U.S. Department of Education sent a letter to public school districts and universities nationwide providing guidance on complying with federal laws intended to prevent harassment of students. In a press statement about the letter, the Department of Education states that federal education anti-discrimination laws provide protection against harassment of gay and lesbian students. The letter states that its guidance "explains educators' legal obligations to protect students from student-on-student racial and national origin harassment, sexual and gender-based harassment, and disability harassment."

    Russlynn H. Ali, assistant secretary for civil rights, told The New York Times, "Folks need to wake up. We have a crisis in our schools in which bullying and harassment seems to be a rite of passage, and it doesn't need to be that way."

    In its coverage of the 10-page letter, The Times wrote that Education Department officials said that distribution of the letter "took on new urgency in recent weeks because of a string of high-profile cases in which students have committed suicide after enduring bullying by classmates," and citied an incident at Rutgers University involving the harassment of a male student following his "intimate encounter with another man." The Rutgers student committed suicide last month.

    The Education Department includes a link to the administration's "Stop Bullying Now Campaign," which includes research on the matter. A 2010 study states that gay, lesbian and bisexual youth "are more likely to report being bullied than are heterosexual youth."

  • October 22, 2010
    Education Policy
    Guest Post

    By Paul M. Secunda, an associate law professor at Marquette University Law School.
    Although the United States Supreme Court expressly decided not to weigh in on the issue in Garcetti v. Ceballos in 2006, the first major decision by an appellate court has been decided on whether or not Garcetti's holding (that there is no First Amendment protection when public employees speak pursuant to their official job duties), applies to public school teachers in the classroom.

    The decision is what I would expect from a court closely following the teachings of the Garcetti precedent: yes, Garcetti applies. In Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., a case involving a high school English teacher who claimed her employment was unconstitutionally terminated by an Ohio school district in retaliation for her choice of student reading selections (including Herman Hesse's Siddhartha) and teaching methods, the court (per Judge Sutton and two other Republican appointees - two appointed by Bush I, the other by Bush II) decided yesterday that:

    [T]he right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made "pursuant to" their official duties.

    Without doing any legal analysis, just wrap your mind around that statement for a second.

    The people we entrust with teaching our children how to think, read, write, behave, become citizens, etc., have no ability, zero, to say what they wish in carrying out this crucial exercise of representative government. Now don't get me wrong, I understand that such environments require some discretion and decorum so that young impressionable minds are handled carefully, but to say that there is NO First Amendment right is absurd. At the very least, whatever interests the school district has should be balanced against the speech rights of the teacher - the holding in Pickering v. Bd. of Education - that makes much more sense, no?

    And I don't want to hear about the floodgate of litigation that will ensue if we permit such balancing. Balancing in this regard has been the norm since the Pickering case in 1968, and I have not seen a tidal wave of such cases overwhelm the federal courts yet (partly because it is so difficult to win these cases).

    But think about it for a second now from a policy perspective - what incentives are being established ex ante through this legal rule. At least two that trouble me. First, if you know that you speak outside of the school (say to the newspaper like Mr. Pickering himself did way back when), you are clearly protected in your speech to speak on matters of public concern. That means that public school teachers now have an incentive to air their dirty laundry in public rather than seek resolution within their schools or with the school board. That makes no sense.

  • October 11, 2010
    Education Policy
    Guest Post

    By Carlton Larson, professor of law, UC Davis School of Law. Professor Larson is author of the chapter, "Legacy Preferences and the Constitutional Prohibition of Titles of Nobility," in The Century Foundation book, Affirmative Action for the Rich: Legacy Preferences in College Admissions.  

    In a recent book, Affirmative Action for the Rich, a number of authors address various aspects of the problem of legacy preferences in college admissions. My chapter, entitled, "Legacy Preferences and the Constitutional Prohibition of Titles of Nobility," makes an argument that many people will initially find quite startling. The Constitution flatly prohibits the states from granting any "title of nobility." I argue that public universities violate the prohibition of titles of nobility when granting preferential admission to applicants based on their ancestry.

    At first blush, this argument might seem a bit nutty. The prohibition would seem to be about creating dukes and earls, not about distinguishing among 17-years olds applying to college. But this perception is simply wrong. To see why, imagine a simple hypothetical. Suppose that a state decided to create a new position called "Distinguished Citizen." Each person selected as a "Distinguished Citizen" would receive a coat of arms, a large country estate, and would be entitled to serve in a state "Council of Distinguished Citizens" that would replace the state senate. The title of "Distinguished Citizen" would be hereditary, descending to the individual's eldest child or other heir at law. In this case, no prohibited "title" of nobility has actually been used - nobody was formally declared a duke or an earl. But, functionally, this system is virtually identical to the English House of Lords - precisely the type of aristocracy that the Constitution was meant to prohibit. If this proposal did not violate the prohibition of titles of nobility, then the prohibition could be easily evaded by simply using certain words rather than others - "Distinguished Citizen," rather than "Earl."

    As this example suggests, the prohibition of titles of nobility is not primarily about words - it is about the substance of nobility. To know whether a governmental practice violates the prohibition, one must know functionally how it actually works, not whatever label it happens to be wearing. So what, then, is the substance of nobility? One of the core features of nobility is a set of hereditary privileges with respect to institutions of the state. This feature, more than anything else, animated the constitutional prohibition.

    My chapter spends a fair amount of time exploring how revolutionary Americans understood the term "title of nobility." This evidence overwhelmingly demonstrates that revolutionary Americans viewed hereditary privileges as flatly prohibited by the Constitution's prohibition of titles of nobility, and by the predecessor clause in the Articles of Confederation. As one proponent of the Constitution pointed out, American political leaders would "have none of the peculiar follies and vices of those men, who possess power merely because their fathers held it before them, for they will be educated (under equal advantages, and, with equal prospects) among and on a footing with the other sons of a free people." Revolutionary Americans repeated, insistently (with the notorious exception of slavery), that any form of hereditary privilege be purged from American life. When a group of former Continental Army officers formed a hereditary society, an outraged people demanded that it be abolished as a violation of the fundamental principles of equality the nation was founded on. Many of America's most distinguished lawyers concluded that this society violated the prohibition on titles of nobility in the Articles of Confederation, even though no formal titles such as "earl" or "duke" had actually been employed.

    Once we understand that the constitutional prohibition of titles of nobility is not limited to specific titles, but extends to all hereditary privileges granted by the state, it is easy to see why legacy preferences in public universities cannot be sustained. These preferences augment the candidacies of certain applicants for no other reason than their ancestry. It is hereditary privilege, pure and simple, entirely unrelated to any personal quality of the applicant. This is precisely the type of privilege with respect to state institutions that the revolutionary generation was most concerned to eliminate. Indeed, so successful was the American Revolution in this respect that is impossible to think of any other area of American life in which public institutions routinely favor certain people solely based on ancestry. Would we give bar examinees a few extra points because they happen to have a lawyer parent? Or issue hereditary hunting licenses? Of course, not. The very idea is absurd. And it's just as absurd in the context of college admissions. Although created in the 1920's to reduce the number of Jewish students at elite institutions (prior to the 1920s, elite institutions did not limit their class size; they took every applicant who passed the rigid entrance requirements), legacy preferences are more properly viewed as a relic of a monarchical, aristocratic era. They have no place in 21st century America.

  • October 7, 2010
    Education Policy
    Five Miles Away, A World Apart
    One City, Two Schools, and the Story of Educational Opportunity in Modern America
    James E. Ryan

    By James E. Ryan, William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law at the University of Virginia School of Law and director of the law school's Program in Law and Public Service.
    Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (Oxford 2010) is about the law and politics of educational opportunity over the last half century. It tells the story by using as extended examples two schools in the Richmond area, one in the central city and the other (five miles away) in a neighboring suburb. It is not really a case study, nor is it a (completely) dry, abstract, academic book. It's something in between, sort of like the duck-billed platypus of books.

    The central argument starts with the claim that Richard Nixon is the modern architect of education law and policy. Here's why:

    In March 1972, President Nixon gave an unusual televised address, devoted solely to the topic of school desegregation and busing. A few months earlier, lower federal courts in Detroit and Richmond had ordered suburban school districts to participate in metropolitan-wide desegregation plans. The courts ordered the participation of the suburbs because there were not many white students left in either city. These decisions were later overturned on appeal, but at the time of Nixon's speech - and as hard as it might be to imagine today - the possibility of cross-district, urban-suburban busing seemed very real.

    Nixon denounced busing and proposed legislation that would limit its use for desegregation, suggesting that this reflected the views of both black and white parents, who preferred neighborhood schools. He then offered an alternative approach to the problems facing urban schools: "It is time for us to make a national commitment to see that the schools in central cities are upgraded so that the children who go there will have just as good a chance to get a quality education as do the children who go to school in the suburbs."

  • September 27, 2010
    Education Policy
    Guest Post

    By Steve Shadowen, an attorney at Hangley Aronchick Segal & Pudlin. Shadowen has previously written about legacy preferences for the Santa Clara Law Review and the George Mason University Civil Rights Law Journal. He was also a participant at a recent panel discussion by The Century Foundation about its new book, Affirmative Action for the Rich: Legacy Preferences in College Admissions. Video of that panel discussion is available here.

    A recently published book, Affirmative Action for the Rich, addresses the history, sociology, economics, and law related to legacy preferences in college admissions. Almost 85 percent of elite colleges and universities in the United States grant or withhold these preferences based on applicants' ancestry, i.e., on whether they are the children or grandchildren of the school's alumni. These "legacy preferences" are straightforward violations of the Equal Protection principle, articulated in Hirabayashi v. United States that "distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."

    Some lawyers anachronistically resist the idea that the forbidden "ancestry" classification includes family lineage as well as broader lineage-based categories such as "race" or "ethnicity." But as Justice Potter Stewart wrote, the Founders who overthrew the vestiges of feudalism and aristocracy understood equality to require precisely the elimination of "distinctions among white men on account of their birth," i.e., distinctions based on family lineage. [Fullilove v. Klutznick] For example, Jefferson understood the "natural equality of man" to include "particularly the denial of a preeminence by birth." [April 16, 1784 letter to George Washington] The colonists' victory over family-lineage distinctions was reflected in the Constitution's: (1) guarantee of a republican, as opposed to an aristocratic, form of government; (2) ban on granting titles of nobility; (3) "Corruption of Blood" Clauses, which prevent capital crimes from staining the perpetrator's family lineage; and (4) Attainder Clauses, which prohibit government from penalizing persons based on their identity or status rather than their conduct.

    Justice Stewart noted, however, that the original Founders failed to extend this principle to protect African Americans, a task that fell to the framers of the Equal Protection Clause. That Clause, concluded Justice Stewart, codified and expanded the principle against hereditary distinctions and thus "promised to carry to its necessary conclusion a fundamental principle upon which this Nation had been founded - that the law would honor no preference based on lineage." For example, John Bingham believed that the Declaration had embodied the biblical prescription that the law, like God, is "no respecter of persons." [Debates on the 1866 Civil Rights Act] Bingham drafted the Equal Protection Clause to codify this principle against hereditary distinctions and broaden it to prohibit discrimination based on inherited race.