School Finance Reform and Professor Stephen D. Sugarman’s Lasting Legacy

Once, over lunch, I recall a law professor reflecting on scholarly work’s ephemeral nature. Legal academics, he thought, should consider themselves lucky if their articles sparked a discussion that lasted for even a few years. By that standard, Professor Stephen Sugarman’s seminal work on school finance reform, done in collaboration with John Coons and William Clune, must count as a Methuselah of academic concepts. Decades later, this research continues to prompt scholarly debate, legal advocacy, and legislative reform. In this essay, I first describe the origins of the theory of school finance reform. I then turn to the ongoing influence that this approach has had on how schools are funded. I close with some thoughts on the reasons for this idea’s tremendous staying power

Dreamers Interrupted: The Case of the Rescission of the Program of Deferred Action for Childhood Arrivals

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented students access to public elementary and secondary schools. The Justices emphasized the harm to our democracy that would result from dehumanizing innocent children and relegating them to a permanent underclass of illiterates. In truth, Plyler was a jurisprudential anomaly even at the time it was decided. As a result, in the intervening years, the decision was narrowly limited to its facts, and resolution of the treatment of undocumented immigrants was largely left to the political process. With no clear place in the polity, the undocumented were especially burdened by processes that depend heavily on striking political bargains to influence discretionary policies. In the absence of a right to vote and a robust set of constitutional rights, unauthorized immigrants have mainly been able to bolster their claims to full inclusion through appeals to decency and desert.The struggles of the Dreamers, undocumented immigrants who came to the United States as children, illustrate the limits of these calls for basic fairness. The Dreamers’ assertions of innocence, even though expressly legitimated in Plyler, have not allowed them to escape what sociologist Roberto G. Gonzales describes as a “transition to illegality” when they graduate from high school. Despite their academic achievements, they could not find a secure path to higher education, lawful employment, or American citizenship. When President Barack Obama’s administration created the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, undocumented youth received temporary relief from the threat of deportation as well as access to a renewable authorization to work legally in the United States. However, President Donald Trump’s administration rescinded the program just five years later. In the ensuing litigation, lower courts have split on the rescission’s permissibility, and the U.S. Supreme Court is reviewing the issues in the 2019-2020 term. As the Justices deliberate about these questions, they must consider the unique situation that the Dreamers face. Beneficiaries of the DACA program have come out of the shadows to apply for driver’s licenses and get jobs. The program’s abrupt termination has significantly destabilized their lives, and they cannot turn to the ballot box to rectify the situation. Although the Dreamers have asked for the “right to have rights,” the Court has not reinvigorated its equal protection jurisprudence to confer basic entitlements on persons or even citizens. Because the Court has construed the constitutional entitlements of marginalized groups parsimoniously, government officials operate in a steadily expanding realm of discretionary authority. In response, civil rights advocates have been forced to focus on just how much latitude these officials enjoy before they abuse their discretion. In the DACA cases, undocumented youth have contended that they at least have a right to settled expectations when relying on benefits under federal programs. By requiring administrative agencies to weigh reliance interests in a meaningful way, the Court can make clear that more is at stake than mere deference to government officials’ exercise of discretion. The Justices have the opportunity to remind agencies that program beneficiaries also have significant interests at stake that deserve official recognition and respect

Angela Harris: The Person, the Teacher, the Scholar

Angela Harris has written eloquently about the creative tensions that define her as a person, a teacher, and a scholar. She has explored the challenges of maintaining a private identity when called upon to share her life experience with a public audience, whether in the classroom, at a conference, or in an essay. She has reflected on the ways in which legal teaching privileges reason over emotion, wondering whether this dynamic impoverishes the exchange of ideas and undervalues the joy that can motivate a caring advocate. And, she has explored the dialectic between identity politics and the structural forces that entrench inequality. Angela argues that whatever post-modern doubts critical race theorists may harbor about the utility of law in effecting change, they must act as pragmatic modernists who strive to combat injustice. In all of this work, Angela demonstrates the creativity, candor, courage, and compassion that inspire all of us to dedicate ourselves to making a difference

Sorting and Reforming: High-Stakes Testing in the Public Schools

As with “Millionaire,” these practices are widely accepted, roundly applauded, but nevertheless quite controversial. In this article, I will first examine the historical origins of high-stakes testing. Next, I will describe the growing interest in these tests in elementary and secondary schools as well as the tensions that have resulted. Then, I will explore the most significant challenges to the use of high-stakes testing as a requirement for graduation or promotion to another grade. This article will close by contemplating the likely future of the movement for testing and accountability

The Unbearable Emptiness of Formalism: Autonomy, Equality, and the Future of Affirmative Action

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In contrast to Justice Powell’s emphasis on the unique nature of higher education, formalist approaches rely on the plain meaning of a statute or constitutional provision. Shorn of context and values, textual interpretation leaves the Justices susceptible to risks of false equivalencies and missed analogies. False equivalencies treat categories as the same when they are in fact different, while missed analogies treat categories as different when they are the same.Both dangers can infect affirmative action jurisprudence. Under the First Amendment, the Justices have failed to recognize the importance of both sectarian organizations and institutions of higher education in preserving the conditions for robust discourse. As a result, the Court has grown increasingly deferential to religious freedom but more skeptical of the autonomy of colleges and universities to weigh race in admissions. That missed analogy in turn is compounded by a false equivalency, one that inheres in formal colorblindness. Under the Fourteenth Amendment, the Justices have treated all considerations of race as similarly pernicious, equating acts that discriminate against historically underrepresented groups with those that seek to include them. Taken together, declining deference for colleges and universities and an entrenched commitment to a colorblind Constitution could spell the end for affirmative action. Despite these failings of formalism, however, I will show that these programs can still survive exacting judicial scrutiny

Persistent Inequalities, the Pandemic, and the Opportunity to Compete

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic has laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first will focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I will explore patterns of racial and ethnic segregation in America’s schools and how those patterns are linked to additional challenges based on socioeconomic isolation. In addition, I will consider the role of language and immigration status in shaping educational opportunity. As I will explain, children with the greatest educational need often attend schools with the fewest resources, thus compounding disadvantage