Don\u27t Count Them Out Just Yet: Toward the Plausible Use of Race-Preference Student Assignment Plans

Contrary to conventional wisdom, the Supreme Court\u27s recent decision in Parents Involved in Community Schools v. Seattle School District No. 11 could serve to broaden the permissible use of race beyond the boundaries presently permitted by the Court. In this highly fractionalized decision, five justices ultimately agreed that the race-based student assignment plans before their review could not withstand judicial scrutiny. One of these justices, Justice Kennedy, agreed with the plurality\u27s conclusion, but rejected the plurality\u27s assessment that it is never permissible to use race-preference student assignment plans absent evidence of de jure segregation. His concurrence, when read together with the reasoning of the Court\u27s four dissenting justices, offers a plausible scenario under which future courts could find precedential support to uphold challenged race-preference student assignment plans as constitutionally permissible

Finding Success in the Cauldron of Competition: The Effectiveness of Academic Support Programs

This article provides an in-depth analysis of our comprehensive study of the Pace Academic Support Program. Section II of the article discusses the purpose and design of ASPs generally, and Pace Law School\u27s program specifically. Section III describes the research design, methodology, and procedures used for this study. Section IV evaluates and analyzes the findings, with an in-depth analysis of the impact each service yields to ASP students, as well as the statistical significance of such benefits. Section V evaluates the importance of background criteria and the impact that such variables have on ASP participants and non-participants. Section V also discusses whether any of these background variables allow some students to derive a greater benefit from the program than other students participating in the same service. Section VI elaborates on the benefits of participation in an ASP, while Section VII elaborates on the impact of background variables on the performance of students

Future of the First Amendment: What America's High School Students Think About Their Freedoms

Presents findings from a survey of students and teachers in 34 high schools, that examines attitudes toward First Amendment protections for national and local news media, and student newspapers, and evaluates current education on the rights it guarantees

The Death of Slander

Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone's reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person-to-person communication. Text messaging, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise. At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical reality that is no longer accurate. Originally, permanence and breadth of dissemination always coincided. Slander carried only as far as one's voice. Because of slander's presumed evanescence, common law required plaintiffs to plead special damages—proof of economic harm—in order to recover for slander. The advent of broadcast technology, with its ability to amplify the spoken word, challenged the traditional division of defamation and forced courts and legislatures to reconsider old classifications. Jurisdictions split in their decision to characterize broadcast speech as libel or slander, largely because of divergent views about which aspect of the speech—permanence or breadth of dissemination—was more important. Postbroadcast technology has further complicated the defamation arena, leaving parties unsure of how best to plead their defamation case. In the past decade technology has again changed the way we communicate. The digital communication revolution has created instances of widespread dissemination through quick, nonreflective and often passing statements. This past year, for example, Wael Ghonim's tweet to join him in an Egyptian village square lead to the downfall of Egypt's political powers. His fleeting comments to those willing to listen caused an entire nation to fall. This Article considers how courts should rule when these tweets, or text messages, not quite printed, not quite spoken, are defamatory. This Article argues that the advent of text messaging, tweeting and other forms of digital communication, which I call "technospeech," renders the medieval tort of slander irrelevant in today's technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation. Treating all defamation similarly promotes fairness for plaintiffs seeking to rehabilitate their damaged reputation and provides predictability to those bringing defamation claims. A thoughtful and orderly treatment of technospeech mandates that courts and legislatures put the proverbial final nail in the coffin of slander

Adding Colors to the Chameleon: Why the Supreme Court Should Have Adopted a New Compelling Governmental Interest Test for Race-Preference Student Assignment Plans

This is the published version

The Glass Half Full: Envisioning the Future of Race Preference Policies

Justice Breyer\u27s concern that the Court\u27s June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 is a decision the Court and nation will come to regret is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when assigning students to particular schools. Justice Kennedy’s concurrence in the 4-1-4 decision, like that of the dissent, acknowledged that a compelling governmental interest in achieving diversity justifies a school board’s use of race conscious school assignment plans. His opinion could swing the Court to a position that is favorable to those who believe race-preference policies are paramount to achieving a society free from segregation. The Supreme Court\u27s fractured opinion in Parents Involved is reminiscent of the first time the Court considered an Equal Protection challenge to an academic institution employing a race-preference program. In this recent decision a divided court ruled that the Louisville and Seattle School districts could not use race as a factor in determining which school a particular student would attend. The Court split itself in a manner similar to the Court in University of California v. Bakke, where a fractured Court ruled that the University of California Medical School could not set aside a certain number of seats for minority applicants whose objective admissions criteria were not equal to that of their non-minority peers. Commentators warned that the Court\u27s decision potentially limited educational opportunities for minorities and also vitiated the important strides of the civil rights movement. The reality of the Bakke decision, however, unveiled itself quite differently than anyone reading the Court\u27s opinions might have predicted. Five justices agreed that the University of California Medical School\u27s program violated the Equal Protection Clause and four justices asserted that race could never be a factor in the admissions process. Justice Powell wrote a majority opinion in which 4 justices joined in his conclusion, but no single justice joined in his reasoning. His opinion acknowledged that in certain instances, states or their agencies could use race as a factor in ensuring diversity and that while the University of California plan violated the Constitution, not all plans that use race would meet with the same fatal result. Justice Powell\u27s majority of one has had historic consequences on the race-preference legal debate. This opinion served as the leading precedent in defining the limits of constitutionally permissible government regulations aimed at remedying present effects of past discrimination and aimed at achieving racial balance. If the Bakke case is to serve as precedent in the truest sense of the word, then following Parents Involved the future of affirmative action is not necessarily as gloomy as Justices, Lawyers, and Commentators predict I argue that Justice Kennedy\u27s concurrence supports an expansion of the permissible use of race-preference policies. My review of the Court\u27s reliance on concurring opinions supports my conclusion that in the right instances, a future court can adopt a single justice\u27s voice and use it to take the court in a very different direction. Thus, despite Justice Breyer\u27s dire prediction history suggests that there is some room for optimism that governmental entities, in the proper instances, will remain free to employ race-preference programs

Adding Colors to the Chameleon: Why the Supreme Court Should Adopt a New Compelling Governmental Interest Test for Race-Preference Student Assignment Plans

When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme Court, could it now be that what’s constitutionally required one day gets constitutionally prohibited the next day? Under the Court\u27s current strict scrutiny test, the Court can only uphold race-preference programs if they meet one of two stated compelling governmental interests; remedying present effects of past discrimination or achieving viewpoint diversity in a classroom of higher education. This article argues that if the school desegregation plans fail to satisfy either of the Court\u27s two stated compelling interest tests the Court should consider evaluating the programs under a new third compelling interest. Given the Court’s commitment to enforcing social justice, the article proposes that the Court should find a compelling governmental interest in upholding a race-preference plan in instances where abolishing the plan would threaten a return to the de facto segregation the plan originally sought to cure. Part I of this article will define the historical evolution of the strict scrutiny test and the Court\u27s willingness to allow the context of a particular race-preference issue to drive the definition of a compelling governmental interest. Part II of this article will consider appellate court responses to the applicability of the Court\u27s two articulated compelling governmental interests particularly in cases considering challenges to race-preference student assignment plans. Finally, Part III will argue that the Court must create a new compelling governmental interest for evaluation of race-preference student assignment plans, since invalidation of these school board plans would cause a return to the social conditions that originally necessitated their creation

Ratings Fetishism

The obsession with increasing the reputational rankings of American colleges and universities more detrimentally impacts race-based admissions policies than does Supreme Court doctrine. It is no secret that many schools inflate, misleadingly report, or falsify records in order to pander to rankings systems like U.S. News and World Report (“U.S. News”). These systems weigh a school’s mean standardized test scores (SAT and/or ACT) heavily as one of the factors for assigning a rank. Thus, the incentive among schools playing the ratings game is to admit students with the highest SAT scores. But, if one agrees with the data that underrepresented minorities as a group perform less well than their non-minority counterparts, it is, sadly, an understandable reality that schools focusing on gaming the U.S. News system are disinclined to admit underrepresented minority students. Consequently, ratings fetishism, an unreasonable obsession with high national rankings, is ruining diversity on our college campuses. I do not make these observations casually. There are countless examples of colleges and universities manipulating the data, or even worse, knowingly deceiving U.S. News in an effort to game the system

Hopwood v. Texas: Strict in Theory or Fatal in Fact

This article will examine the Hopwood decisions. Part II will review the factual and legal history behind the case. Part III will discuss the District, Circuit, and Supreme Court decisions. Finally, Part IV will critique these decisions and offer a view into the future for affirmative action admissions policies