Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.

Justia guest columnist and Cornell Law Visiting Fellow Antonio Haynes comments on a recent controversy in which parents of two public school students did not object to their daughters undergoing corporal punishment (specifically, paddling), but did object to the punishment being carried out by men, rather than women. Haynes points out that, upon closer examination, the issue here is not actually about sex, but about sexual orientation; the parents assumed the males conducting the spankings were straight and thus thought that they might find performing the spankings erotic. Noting that corporal punishment in the schools has not been ruled by the Supreme Court to be unconstitutional, and that 19 states still allow it, Haynes suggests that issues like who may administer a spanking tend to distract us from asking deeper questions such as why we still accept corporal punishment in our schools, and why—if we trust school officials to paddle students—we do not also trust them not to harbor erotic motives while doing so.

Justia columnist and attorney Julie Hilden comments on the recent controversy over a Philadelphia public school geometry teacher's deriding student Samantha Pawlucy for wearing a Romney/Ryan T-shirt. The incident blew up into a full-blown controversy, with Romney personally calling the girl and speaking with her parents. Hilden parallels the incident to the key 1969 Supreme Court student-speech case, Tinker v. Des Moines Ind. Comm. Sch. Dist., in which students near Pawlucy's age wore black armbands in school in order to protest the Vietnam War. Hilden also argues that Pawlucy’s is an easy case, and that she would have a much harder First Amendment case, had the incident occurred in a History or Social Studies class. Finally, Hilden questions whether this was a case of teacher/student bullying, and suggests that teachers and students alike should be required to learn basic school-speech First Amendment tenets.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the use of biometrics in school lunch lines and elsewhere in schools. More specifically, she notes, schools are using an infrared scanner that identifies children’s unique palm and hand vein patterns, and converts these patterns into an algorithm through which the child can be recognized quickly and uniquely by a hand scan. Ramasastry raises privacy concerns about this kind of scanning: Could it lead kids to see other compromises of their privacy as commonplace? Will the databases that contain the scans be used for other purposes—even when the kids become adults? Might law enforcement attempt to use the databases of the hand scans? And what about parents with religious objections to schools’ using the hand scans on their children? At the very least, Ramasastry suggests, the scanning system should be “opt in” and not “opt out,” so that parents can think carefully about allowing their children to become part of the scanning system, and thus part of the related database.

Justia columnist and Hofstra law professor Joanna Grossman comments on some troubling aspects of the federal regulations regarding single-sex public schools and public-school classes, and how those regulations have often been distorted in practice. These developments, Grossman notes, have led to a current nationwide ACLU investigation, from which preliminary findings have been made; and to a lawsuit, with more suits possibly to come. Grossman first explains the law and regulations that govern single-sex public schools and public-school classes, some of which derive from George W. Bush Administration regulatory changes that took effect in 2006. Detailing the content of the regulations, Grossman then argues that they not only run afoul of the law, but are also likely damaging the very children whom they are supposed to be helping. She also questions the decision to have schools self-enforce the very rules that are supposed to bind them. In addition, Grossman cites other baleful aspects of the 2006 changes, including their tendency to invite gender stereotyping, along with gender segregation, and the fact that they were based on what is clearly now-discredited science. Grossman argues that the Obama Administration’s Department of Education’s Office of Civil Rights (OCR) should now take the opportunity to correct and update the regulations at issue.

Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss the Supreme Court’s decision in United States v. Alvarez. As they explain, the case concerned the Stolen Valor Act, which imposes criminal penalties on those who falsely claimed to have been awarded the Congressional Medal of Honor or another medal granted by the United States. The Court had to decide whether the Act violated the First Amendment. Amar and Brownstein offer a subtle analysis of the various doctrinal moves that were made, in the case, by the Justices who joined the plurality opinion, the concurrence, and the dissent in the case, respectively. They focus especially on a search for a limiting principle that goes just far enough, but not too far, in the case, and target their analysis especially toward law professors who seek to teach the case, and students who seek to better understand it.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent study ranking law schools by scholarly impact that was conducted by University of Chicago professor Brian Leiter, who also contends that the most well-known law-school-ranking system, that of U.S. News & World Report, is seriously flawed. Amar covers ranking methodology; describes what the most recent Leiter rankings show; and explains why the U.S. News rankings tend to differ somewhat from the Leiter rankings. Amar also addresses a key underlying question for any law school ranking: How much should a school’s scholarly productivity count, as opposed to other possible ranking factors?

Justia columnist and attorney Julie Hilden comments on an interesting case regarding educational privacy. The case arose when a Florida college instructor sought to find out the name of the student who had filed a complaint with the college against him. Federal and Florida law regarding student privacy were stumbling blocks, but the instructor ultimately did find out the name of the complaining student. As Hilden explains, precedent indicates that students’ educational privacy rights yield only if a given communication is held to be not directly, but only tangentially, related to a student. Here, that very holding was made—since although the student sent the complaint, the substance of the complaint was about the professor. Hilden questions the court’s reasoning, and questions, more broadly, whether privacy is much needed in the education context in the first place.

In Part Two of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman continues her discussion of the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result. Here, Grossman stresses, among other points, that a police investigation of alleged sexual harassment or assault is no substitute for the required school investigation that is mandated.

In Part One of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman discusses the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result.

Justia columnist and Cornell law professor Sherry Colb comments on the recent phenomenon of high school students’ using stimulants such as Adderall and Ritalin to attempt to improve their academic performance, often getting the stimulants by faking Attention Deficit Hyperactivity Disorder (ADHD). Colb notes that for those who do not have ADHD, the drugs act as a stimulant, allowing the user to better concentrate and focus. Colb compares and contrasts the issues raised by steroids scandals in professional sports to illustrate what, exactly, is wrong with this kind of use of Adderall and Ritalin. Among other points, Colb expresses concern that students’ use of such drugs will become the “new normal”—which is especially worrisome as the drugs carry side effects and serious risks. She also suggests that we, as a society, reconsider the competitive model of high school studying, and instead focus on students’ learning about subjects that interest and inspire them individually.

Justia columnist and former counsel to the president John Dean does a Q&A with Ross Guberman, the author of the book Point Made: How to Write Like the Nation's Top Advocates (Oxford 2011). The interview covers how Guberman got into the teaching of legal writing and honed his skills in the field, the effect good writing can have on a case, and the methods and techniques that Guberman uses himself, and teaches others. Readers may be especially interested in Guberman's account of three mistakes that lawyers often make in drafting and presenting their arguments. Finally, Guberman previews his next book, which will comment on well-written judicial opinions.

Justia columnist and attorney Julie Hilden discusses the types of complaints that libraries have received about the books in the Hunger Games trilogy, and argues that libraries should nevertheless keep the books on the shelves. The complaints that Hilden discusses claim that the books contain sex, are anti-ethnic, are anti-family, contain material that is “occult/satanic,” and are too violent. Except for the claim about violence, Hilden argues, these claims are inaccurate on the facts—they either do not accurately describe the books’ content, or they fail to put material from the books in proper context. Finally, regarding the claim about violence, Hilden notes that a number of classic works that are commonly taught in schools contain violent acts—and even, in cases like Lord of the Flies, acts of violence among children.

Justia columnist, George Washington law professor, and economist Neil Buchanan takes strong issue with several arguments that have often been made by Republicans in the run-up to this year’s presidential election. Specifically, Buchanan counters arguments that taxpayers should not help pay for others’ college educations—and perhaps not their K-12 educations, either. He also takes on the two mutually contradictory arguments that (1) college is a waste of time and money, and (2) college education is the only force driving economic inequality. As to the first argument, Buchanan points out that education is a key indicator of economic progress, and that as we stagnate in our population’s educational achievement, other countries eagerly seek out more college education for their own people. As to the second argument, Buchanan argues that it can be rebutted by basic statistics, and that, even if it were true, the logical response would be to broaden American educational attainment.

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the recent Republican attack on American education. Buchanan begins by emphasizing the copious evidence showing that education leads to national prosperity. In addition, he contends that it only makes sense for everyone who benefits from our educational system—meaning all Americans—to together pay for that system, including via student loans. Citing recent comments by candidates Mitt Romney and Rick Santorum, Buchanan critiques and opposes their, and other Republicans’, seeming disdain for education. Buchanan argues that if you focus on the facts, education has been proven, over and over, to be well worth its cost. Other countries clearly know this, Buchanan points out, citing notable examples, and if we forget this truth, he says, we will surely fall behind as a nation.

Justia columnist and U.C., Davis law professor Vikram David Amar continues his two-part series of columns on the Supreme Court and affirmative action. In this column, Amar cites ways in which both the liberal and the conservative Justices have seemed to fall short of being truly intellectually honest on affirmative action issues. Amar focuses especially on what methodology the Court should use in affirmative action cases, and whether some affirmative action cases should not have been decided by the Court at all. More specifically, Amar looks at the use of originalist methodology in affirmative action cases, and issues of standing in such cases. Finally, he comments on the Fisher case, which is now before the Court, and involves the University of Texas’s admissions system.

In Part One in a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram Amar comments on the Supreme Court and affirmative action—a timely subject due to the Court's recent grant of review in the case of Fisher v. University of Texas, which involves affirmative action in college admissions. Amar contends that, when it comes to this explosive issue, the two wings of the Court have both engaged in intellectual dishonesty, and he details how the Justices adopted their current distrust: Amar charges the Court's liberals with an unwillingness to apply meaningful strict, or even intermediate, scrutiny to race-based programs; charges its conservatives with the unfair treatment of remedial rationales; and takes issue with some Justices' treatment of history and precedent. Amar's analysis includes some shockingly out-of-context quotes that Justices, over time, have used to try to make their points in this highly controversial area.

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education.  As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched.  Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest.  The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions.  Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.

George Washington law professor and economist Neil Buchanan comments on the state of the economics profession today, linking it to the frustration many Americans feel when economists seem unable to come up with a clear set of prescriptions as to how the economy can be improved. Buchanan traces the root of the problem to the way in which economists are now trained, and the expectations placed upon PhD candidates. Ideally, Buchanan says, economists would be trained to study important and interesting real-world issues. Instead, he observes, they are not asked to actually try to understand the economy, but rather to master certain technical skills and to gain a command of topics in advanced mathematics that have limited, if any, direct real-world applications. Buchanan notes that some excellent economists do learn to grapple with real-world problems, but he observes that they do so more by happenstance, than as a result of their training. He traces the roots of this longstanding situation, and predicts that it will only change if and when the incentives presented to economics PhD candidates change.