North Carolina Law Review

Introduction

drhansen — Mon, 15 Feb 2010 20:17:36 +0000

The founding of the United States as a constitutional republic was nation-building. Restoring unity in the aftermath of the Civil War was nation-building. Achieving Brown v. Board of Education and the goal of equal educational opportunity for all children was nation-building. The articles in this Issue, inspired by the April 2009 conference, “Looking to the Future: Legal and Policy Options for Racially Integrated Education in the South and the Nation,” hosted by the UNC School of Law, discuss the ongoing nation-building task of implementing Brown’s goal of high-quality, integrated public schools.

Racially Integrated Education and the Role of the Federal Government

drhansen — Mon, 15 Feb 2010 20:16:13 +0000

When it comes to racial and ethnic integration in our nation’s public schools, it matters significantly whether the federal government is friend or foe. This has always been the case, but it is particularly so now. More than three decades have passed since the last major federal initiative to promote school integration. Meanwhile, courts in recent years have substantially curtailed the remedies that can be achieved through school desegregation litigation and applied increasingly narrow interpretations to laws that once allowed private litigants to supplement federal government enforcement of civil rights. As a result, American public schools have witnessed two decades of resegregation and are more segregated today than they have been in over forty years. Forty percent of Latino students and nearly that same percentage of Black students attended intensely segregated schools, where ninety to one hundred percent of the population is non‐White. What is more, the relationship between race and poverty continues to run deep: forty percent of Black and Latino students also attend schools of concentrated poverty, where seventy to one hundred percent of the children are poor. By contrast, only about one in thirty White students attend such schools.

This Article takes a look back at the role that the federal government has played with regard to issues of school integration and school desegregation to see how history can inform what a new administration in Washington could do to reinvigorate the cause and advance the goal of racially integrated education. After briefly reviewing the role of the federal legislative and executive branches—in initially facilitating school desegregation and then, for most of the past four decades, withdrawing from the gains made—this Article offers recommendations the Obama administration for future actions. Beyond presidential leadership, the Article focuses primarily on the promise and potential of three federal entities: the Civil Rights Division of the U.S. Department of Justice, the Office for Civil Rights in the U.S. Department of Education, and the U.S. Commission on Civil Rights. It suggests both an intentional, tailored effort to develop integration-maximizing strategies to deal with the government’s existing school desegregation docket, as well as an affirmative, multi-pronged effort to advance voluntary school integration initiatives, broadly defined.

Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools

drhansen — Mon, 15 Feb 2010 20:15:17 +0000

The Supreme Court’s decision on Brown v. Board of Education, held that separate educational facilities were “inherently unequal.” After tolerating substantial delay and evasion of the requirements of Brown, the Court eventually required school districts to dismantle the dual systems by eliminating all traces of separate schools and creating integrated schools. In contrast to numerous scholars that have contended that many of the Court’s later school desegregation decisions withdrew from or grew weary of school desegregation, this Article argues that the effect of many of the Court’s leading school desegregation decisions was to reconstitutionalize segregated schools. Furthermore, the Court’s recent decision in Parents Involved in Community Schools v. Seattle School District No. 1, will exacerbate this effect by making it substantially more difficult for school districts to remedy such schools. This Article concludes with a proposal for how the President and U.S. Department of Education could implement a comprehensive plan to resurrect Brown’s promise to end separate and unequal schools.

After Unitary Status: Examining Voluntary Integration Strategies for Southern School Districts

drhansen — Mon, 15 Feb 2010 20:15:14 +0000

This Article provides empirical data on student assignment plans that are currently being used by Southern school districts that have recently attained unitary status. As the facts of Parents Involved in Community Schools demonstrate, Southern school districts will likely continue to be at the forefront of the struggle over voluntary integration efforts. Many Southern school districts are being released from desegregation orders that allowed the district to use race conscious remedies to address previous de jure racial segregation. Without those court orders, the school district is faced with a choice about whether to continue to make racial integration a priority and what legally permissible strategies the school district may employ. The goal of this Article to provide a snapshot of how many Southern school districts are facing this dilemma and what choices the school districts are making.

This Article presents an empirical study that identifies school districts in Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, and South Carolina that have attained unitary status since 2004. Part I then goes on to identify the important commonalities with respect to these cases, including examining the role of the United States Department of Justice in assisting school districts in unitary status proceedings.

This Article builds on these initial findings by providing a study of the post-unitary status student assignment plans adopted by the Southern school districts. This Article then analyzes the trends in post-unitary status student assignment plans: the prevalence of small districts with only one school at each grade level, the continued use of race conscious student assignment plans by a few districts, the emergence of socioeconomic status as a factor in student assignment, and the strategic drawing of attendance zones.

This Article also presents an overview of strategies to encourage voluntary racial integration in Southern school districts. These strategies are examined from several different viewpoints: strategies that may be employed by school districts that seek to adopt voluntary integration plans, the need for additional desegregation litigation under state constitutions, and the role of the federal government in promoting the goal of racial integration in public schools.

Pursuing Educational Opportunities for Latino and Latina Students

drhansen — Mon, 15 Feb 2010 20:14:06 +0000

The number and percentage of Latino and Latina students in U.S. public schools continue to grow rapidly, yet the literature lacks a comprehensive analysis of how existing law can be used to advocate for these students’ interests. This Article first lays the socio-legal foundation necessary to contextualize such an analysis. Then, it aims to provide such an analysis by evaluating the present utility of three major litigation initiatives and three important policy initiatives which parents, advocates, and school districts have employed in the pursuit of educational equity for Latino and Latina students: school desegregation litigation, school finance litigation, Equal Educational Opportunities Act litigation, civil rights education recordkeeping, English language instructional alternatives, and voluntary, multi-factor socioeconomic status integration. Ultimately, this Article argues not only for pursuing all initiatives concurrently, but also for continuing to value and employ race-ethnicity-conscious measures (rather than colorblind ones) as our society pursues the goal of advancing educational opportunities for all children.

Integrated Education and Mathematics Outcomes: A Synthesis of Social Science Research

drhansen — Mon, 15 Feb 2010 20:13:39 +0000

Mastery of mathematics and science by this nation’s youth is essential for the nation’s future development as well as students’ personal growth and economic well-being. Yet the performance of U.S. students in mathematics and science is unimpressive compared to other advanced industrialized nations. In addition, stark racial and socioeconomic status (“SES”) disparities in mathematics knowledge, skills, and achievement compound the predicament presented by the overall mediocre performance of U.S. students. A growing corpus of social science research indicates school racial and socioeconomic segregation are institutional sources of the disparate outcomes. Ironically, while the empirical evidence regarding the positive effects of racially and socioeconomically integrated learning environments has grown clearer and more definitive, the 2007 Supreme Court decision in Parents Involved in Community Schools v. Seattle School District Number 1 (Parents Involved) has made it more difficult to create diverse schools.

This Article clarifies the social science record about school composition effects on mathematics outcomes in K–12 schools by presenting a comprehensive synthesis of the educational, behavioral, and social science literatures on the topic. It combines narrative and vote-counting approaches to synthesize fifty-nine articles that met inclusion criteria that included: research disseminated in 1990 or later; reported effects of school racial and/or socioeconomic composition on mathematics outcomes; utilized a quantitative measure of any type of mathematics outcomes as a dependent variable; and employed appropriate statistical techniques given the structure of the data. Together, the fifty-nine articles demonstrate the relevance of school racial and socioeconomic diversity for enhancing mathematics outcomes for elementary, middle, and high school students. Mathematics outcomes are likely to be higher for students from all grade levels, racial, and SES backgrounds who attend racially and socioeconomically integrated schools. Given these findings, parents, educators, policy makers, and jurists should address the role of school racial segregation and concentrated poverty in the persistence of achievement gaps in mathematics outcomes.

Altering Grade Configurations in Virginia Schools: Reducing School Segregation Without Necessarily Considering Race in Light of The Parents Involved Ruling

drhansen — Mon, 15 Feb 2010 20:12:17 +0000

This Article proposes a method by which school districts can voluntarily desegregate their schools while remaining within the constitutional guidelines set forth in the recent Parents Involved in Community Schools v. Seattle School District No. 1 Supreme Court opinion. This Article suggests that schools reconfigure grades as an alternative to the more explicit race-based measures struck down in Parents Involved. Grade reconfiguration entails reconstituting elementary schools, for instance, into primary and upper elementary schools. The reconfigured schools can serve the same number of students as a traditional school, but in a smaller grade span, meaning that such schools can have larger attendance zones. Moreover, districts can strategically select the attendance zones in order to combat the effects of residential segregation on school segregation.

This Article models grade reconfiguration in several Virginia school districts to show the reduction in segregation that would be possible through grade reconfiguration. The models show that grade reconfiguration can eliminate segregation in small school districts and reduce it considerably in larger districts. The Article also illustrates that the technique could also be used as part of an interdistrict desegregation plan.

Still Swimming Against the Resegregation Tide? A Suburban Southern School District in the Aftermath of Parents Involved

drhansen — Mon, 15 Feb 2010 20:11:39 +0000

Although many of the nation’s school districts have experienced resegregation in the opening decade of the twenty-first century, the school district in Rock Hill, South Carolina has made significant and successful efforts to increase integration even though the school district was not under any court order to do so. This Article discusses how these efforts have been affected by leadership and political will; the development of social purpose politics; the effective use of citizen advisory committees; the local political environment; the district’s demographic composition, reputation, resources, and size; and the complex relationship between race and class. The Article also discusses how the district’s efforts to pursue balance in pupil assignment have been affected by Parents Involved in Community Schools v. Seattle School District No. 1 (“Parents Involved”) and local growth. The Article also compares the Rock Hill experience with the nationally prominent experience of the nearby Charlotte-Mecklenburg Schools in North Carolina. The Article concludes by summarizing the implications of Rock Hill’s experience for integration efforts elsewhere.

To Be Real: Sexual Identity Politics in Tort Litigation

drhansen — Wed, 13 Jan 2010 19:43:38 +0000

Tort litigation plays a role in constructing what we perceive to be “real” about sexual identity. It does so by assuming that sexual identity is naturally binary (male/female), even in cases which pose a challenge to the credibility of that assumption. Thus, to be “real” in tort litigation is to have a sexual identity which appears to be naturally binary, even if you are not. Individuals who challenge this conception may find it difficult to obtain compensation for their injuries or, worse, may not be permitted to sue at all. These practices have important political effects. The most important of these is that tort litigation makes binary sexual difference appear more natural than it is. Since this outcome is at odds with lived experience, this Article argues that tort litigation should take a more pragmatic approach to sexual identity issues, by making space for competing conceptions of sexual identity.

Consumer Investment in Trademarks

drhansen — Wed, 13 Jan 2010 19:42:30 +0000

To protect the interests of trademark owners in many new contexts, trademark law has expanded and uprooted the doctrine from its policy of protecting consumers. To facilitate this expansion, consumer interests are often ignored or manipulated to conform to the interests of mark owners. This Article introduces consumer investment in trademarks as a model to bring public interests back into trademark doctrine. The model demonstrates that because consumers invest marks with meaning and value, they deserve a return. Drawing on literature from the social sciences, this Article illuminates the many ways in which consumers contribute to the success or failure of marks and actively use them to express themselves and find information. In view of this research, this Article advocates rejection of the doctrinal assumptions that trademark owners are solely responsible for trademark value and that consumers are mere passive recipients of information about marks. Instead, trademark law should acknowledge that consumers have also invested in marks, and it should therefore weigh the public interest in using marks as information tools when deciding trademark matters. By adopting the model’s broadened view of how consumers use brands and contribute to their meaning, trademark law can take into account actual consumer interests.

Next, the discussion turns to practical applications. Use of the consumer investment model would keep trademark doctrine on a principled path that preserves the public interest in using marks as information tools. The model offers a new way of examining difficult issues involving the unauthorized use of brands on the Internet. Specifically, in keyword advertising disputes, the model would prompt courts or Congress to weigh public informational interests when considering how much control mark owners should exert over their brands on the Internet. However, as technology advances and new uses for marks evolve, the model would not block trademark expansion. It simply would provide a constant reminder to consider public interests. For example, the model generally supports dilution protection for famous marks. However, this Article introduces “cultural dilution” as a type of lost distinctiveness that should be exempted from trademark protection. Cultural dilution occurs when consumers invest a famous mark with new meaning through viral means that brand owners cannot stop. Finally, this Article recommends creation of a safe harbor for reference materials to reflect actual consumer understandings of terms that also serve as brands. Application of the consumer investments model in these contexts and others would assure that actual consumer interests are weighed in trademark disputes that affect public access to information.