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Touro Law Review 
Volume 13 Number 3 Article 13 
July 2019 
Double Jeopardy 
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DOUBLE JEOPARDY
juror to have continued after a short amount of time, 96 a brief
continuance could have been a viable alternative to a mistrial. 97
The New York State Court of Appeals did, however, hold that
there was "manifest necessity" for the judge to declare a mistrial
in People v. Paquette.98 In Paquette, the prosecution was unable
to produce its witnesses because of threats made to the witnesses
by the defendant's uncle. 99 The court reasoned that "[i]f the act
of a defendant himself aborts a trial, he ought not readily be
heard to say that by frustrating the trial he had succeeded in
erecting a constitutional shelter based on double jeopardy." 100
It is clear from the aforementioned federal and state cases that
the rules governing when a retrial is prohibited pursuant to the
federal and state Double Jeopardy Clauses are clearly congruous
in their application. Both courts will preclude a retrial when a
mistrial is granted by the court without the consent of or over the
objection of the defendant "unless there was a 'manifest
necessity' for the mistrial, or 'the ends of public justice would
otherwise be defeated."' 10 1
People v. MayI02
(decided June 10, 1996)
Defendant, Nathan May, was convicted in 1988 of murder in
the second degree, attempted murder in the second degree and
assault in the first degree.103 He was sentenced to consecutive
96. Id.
97. Id.
98. 31 N.Y.2d 379, 380, 292 N.E.2d 17, 18, 339 N.Y.S.2d 959. 960
(1972).
99. Id.
37. Id.
101. See Perez, 22 U.S. at 580; Boneta, 649 N.Y.S.2d at 443.
102. 644 N.Y.S.2d 525 (2d Dep't 1996).
103. Id. at 526. The New York statute for murder in the second degree is
embodied in New York Penal Law § 125.25. N.Y. PEAL LAW § 125.25
(McKinney 1996). The New York statute for assault in the first degree is
1997] 739
1
et al.: People v. May (decided June 10, 1996)
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prison terms of twenty-five years to life on the murder
convictions, eight and one-third years to twenty-five years on the
attempted murder conviction and a concurrent sentence of five
years to fifteen years on the conviction of assault. 104
Defendant appealed, claiming that the verdict should be set
aside on the grounds that: (1) promises were made to an
eyewitness in consideration of his testimony and the District
Attorney failed to disclose this arrangement to the defendant and
(2) the District Attorney failed to correct the witness' lie that no
arrangement had been made. 105  The defendant additionally
contended that the Double Jeopardy Clauses of the United States
Constitution1 0 6 and the New York Constitution 107 require
dismissal of the indictment. 108
In a memorandum opinion, the Appellate Division, Second
Department reversed the lower court's denial of a new trial.109
The court held that the prosecutor's errors at trial were not
"harmless beyond a reasonable doubt,"ll0 however, the
embodied in New York Penal Law § 120.10. N.Y. PENAL LAW § 125.25
(McKinney 1996)).
104. People v. May, 164 Misc. 2d 54, 56, 623 N.Y.S.2d 515, 516 (Sup.
Ct. Queens County 1995), rev'd, 644 N.Y.S.2d 525 (2d Dep't 1996).
105. May, 644 N.Y.S.2d at 526.
106. U.S. CONST. amend. V. The Fifth Amendment provides in pertinent
part: "No person shall be ... subject for the same offence to be twice put in
jeopardy of life or limb." Id.
107. N.Y. CONST. art. I. § 6. Article I, § 6 of the New York State
Constitution provides in pertinent part: "No person shall be subject to be twice
put in jeopardy for the same offense. ... " Id.
108. May, 644 N.Y.S.2d at 526.
109. Id.
110. Id. (citing People v. Steadman, 82 N.Y.2d 1, 623 N.E.2d 509, 603
N.Y.S.2d 382 (1993)). In Steadman, the prosecution did not disclose that an
assistant district attorney promised the witness that he would not go to prison
for unrelated pending charges against him if he testified against the defendant.
Id. at 5, 623 N.E.2d at 510, 603 N.Y.S.2d at 383. The court held that the
error was not harmless, pointing out that the witness' credibility was "pivotal"
as he was the only identification witness. Id. at 8, 623 N.E.2d at 512-13, 603
N.Y.S.2d at 385 (citing People v. Crimmins, 36 N.Y.2d 230, 326 N.E.2d
787, 367 N.Y.S.2d 213 (1975)). The Crimmins court explained that an error
is not harmless if there is a reasonable possibility that it contributed to a
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DOUBLE JEOPARDY
protection afforded by the Double Jeopardy Clauses did not apply
as there was no indication that the prosecutor's error was made
with "bad faith intent." 111
Allen Jordan, a witness to May's acts, testified for the
prosecution at May's trial.1 12  Jordan had already been
convicted, by plea, of attempted burglary in the second degree
and criminal sale of a controlled substance in the fifth degree. 113
In exchange for his testimony at Nathan May's trial (for
unrelated charges), 114 Jordan was promised a one year sentence
for each conviction. 115 At trial, Jordan testified that "no deals or
promises had been made, however, he was told his sentence
would be one (1) year.",116
The defendant appealed, arguing that the prosecution's error is
grounds for vacating the judgment of conviction against him, and
the Double Jeopardy Clauses of the Federal and New York State
Constitutions require dismissal of the indictment. 117
In response to the first contention, the court noted that the
prosecution conceded in its error of failing to disclose the
arrangement and failing to correct Jordan's testimony.1 18 The
court concluded that the prosecution's error was not harmless
beyond a reasonable doubt and reversed the defendant's
conviction. 119 Dealing with the second contention, the court
held that the Double Jeopardy Clauses relied upon by the
defendant, did not bar a retrial. 120
conviction, no matter how strong the evidence. Id. at 240-41, 326 N.E.2d at
793, 367 N.Y.S.2d at 221.
111. Id. (citing United States v. Wallach, 979 F.2d 912 (2d Cir. 1992);
People v. Mitchell, 197 A.D.2d 709, 602 N.Y.S.2d 923 (2d Dep't 1993);
People v. Copeland, 127 A.D.2d 846, 511 N.Y.S.2d 949 (2d Dep't 1987)).
112. May, 164 Misc. 2d at 57, 623 N.Y.S.2d at 517.
113. Id.
114. Id.
115. Id.
116. Id.
117. May, 644 N.Y.S.2d at 526.
118. Id.
119. Id.
120. Id.
1997]
3
et al.: People v. May (decided June 10, 1996)
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TOURO LAW REVIEW
In United States v. Wallach,12 1 after a four month jury trial,
the defendants were convicted of racketeering, mail fraud,
interstate transportation of stolen property and conspiracy to
violate federal conflict of interest law. 122 At trial, Anthony
Guariglia testified against the defendants. 123 On direct
examination, he testified that he had stopped his compulsive
gambling in the summer of 1988.124 On cross-examination
however, he admitted to signing gambling markers in September
and October of 1988 at an Atlantic City casino. 125 On redirect,
he restated he had stopped gambling the summer of 1988.126
After Wallach's conviction, the government acquired additional
evidence sufficient to indict and convict Guariglia of perjury. 127
While Wallach's conviction was reversed on the ground that
the government should have known that Guariglia was
committing perjury, the United States Court of Appeals, Second
Circuit, determined that a retrial was not barred. 128 The court
explained that generally a "defendant who secures a reversal of
his conviction because of a defect in the proceedings leading to
conviction normally obtains from the Double Jeopardy Clause no
insulation against retrial.,, 129 The court further explained that
there are two exceptions: (1) "a reversal for insufficiency of the
evidence at trial" and (2) "in some circumstances involving
misconduct by a prosecutor., 130 The United States Court of
Appeals concluded that neither exception applied in this case. 131
In construing the protection afforded by the second exception,
the New York cases cited to by the May court held that absent a
121. 979 F.2d 912 (2d Cir. 1992).
122. Id. at 913.
123. Id.
124. Id.
125. Id. at 913-14.
126. Id. at 914.
127. Id.
128. Id. at 917.
129. Id. at 915.
130. Id.
131. Id. at 917.
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DOUBLE JEOPARDY
bad faith intent to provoke a mistrial, the misconduct of
prosecutors did not bar a retrial. 132
In People v. Copeland,133 the defendant was arrested for
possession of a loaded gun. 13 4 On the night of his arrest, the
defendant remained silent for three hours and fifteen minutes
before giving a statement. 135 The trial court ruled that the
prosecutors were precluded from impeaching the defendant's trial
testimony by introducing evidence of his silence. 136 Despite the
court's instructions, the prosecutor referred to the defendant's
silence at trial. 137 The Appellate Division, Second Department,
held that the evidence did not support a finding that the
prosecutor's intent was to provoke a motion for mistrial. 138
Again, in People v. Mitchell,13 9 the court found no intent to
provoke a mistrial when the prosecutor referred to the defendant
as a "pimp" in her opening statement. 140 Quoting Copeland, the
court held "'[a]bsent such a bad-faith intent, the misconduct does
not constitute that type of prosecutorial overreaching
contemplated by the United States Supreme Court as requiring
the barring of re-prosecution on the ground of double
jeopardy.' "141
In People v. May, the court was faced with the question of
whether or not the prosecutor's error was made with bad faith
intent.142 Without a long analysis, following the guidance of
132. Copeland, 127 A.D.2d at 847, 511 N.Y.S.2d at 950; People v.
Mitchell, 197 A.D.2d at 709, 602 N.Y.S.2d at 924.
133. 127 A.D.2d 846, 511 N.Y.S.2d 949.
134. Id. at 846-47, 511 N.Y.S.2d at 949.
135. Id. at 847, 511 N.Y.S.2d at 950.
136. Id.
137. Id. (holding that the "motion by the defendant for a mistrial was
appropriately granted in light of the prosecutor's repeated references to that 3
1/4-hour silence despite the instruction to the contrary by the trial court.") Id.
138. Id.
139. 197 A.D.2d 709, 602 N.Y.S.2d 923.
140. Id. at 709, 602 N.Y.S.2d at 924.
141. Id. (quoting Copeland, 127 A.D.2d at 847, 511 N.Y.S.2d at 949).
142. 644 N.Y.S.2d 525 (2d Dep't 1996).
1997] 743
5
et al.: People v. May (decided June 10, 1996)
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744 TOURO LAW REVIEW [Vol 13
these earlier decisions, the court found that there was no showing
of bad faith intent. 143
In comparing the federal and state cases referred to by the May
court, the federal case explicitly stated the general rule for retrial
and two exceptions and the state court construed the second
exception on a case to case basis. In applying the second
exception, which allows for the preclusion of a retrial in some
circumstances involving misconduct by a prosecutor, the
Appellate Division, Second Department has construed it to
require a showing of bad faith intent. 144
SUPREME COURT
QUEENS COUNTY
People v. Gerstner 145
(decided February 2, 1996)
Defendant moved to dismiss felony charges arising out of
violations of Sections 1192(2)146 and 1192(3)147 of New York
143. Id.
144. See Copeland, 127 A.D.2d at 846, 511 N.Y.S.2d at 949; See also
Mitchell, 197 A.D.2d at 709, 602 N.Y.S.2d at 924.
145. 168 Misc. 2d 495, 638 N.Y.S.2d 559 (Sup. Ct. Monroe County
1996).
146. N.Y. VEH. & TRAF. LAW § 1192(2) (McKinney 1996). Section 1192
(2) provides:
Driving while intoxicated; per se. No person shall operate a motor
vehicle while such person has .10 of one per cent or more by weight of
alcohol in the person's blood as shown by chemical analysis of such
person's blood, breath, urine or saliva, made pursuant to the provisions
of section eleven hundred ninety-four of this article.
Id.
147. N.Y. VEH. & TRAF. LAW § 1192(3) (McKinney Supp. 1996). Section
1192(3) provides: "Driving while intoxicated. No person shall operate a motor
vehicle while in an intoxicated condition." Id.
6
Touro Law Review, Vol. 13 [1997], No. 3, Art. 13
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English

Double Jeopardy

Touro Law Review 
Volume 35 Number 1 Article 2 
2019 
Table of Contents 
Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview 
 Part of the Legal Writing and Research Commons 
Recommended Citation 
(2019) "Table of Contents," Touro Law Review: Vol. 35 : No. 1 , Article 2. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol35/iss1/2 
This Prefatory Matter is brought to you for free and open access by Digital Commons @ Touro Law Center. It has 
been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. 
For more information, please contact lross@tourolaw.edu. 
TOURO LAW 
REVIEW 
Volume 35, Number 1 2019 
TABLE OF CONTENTS 
FOREWORD 
Samuel J. Levine .......................................................................... 1 
 
EVERY STUDENT SUCCEEDS ACT: ARE SCHOOLS MAKING SURE 
EVERY STUDENT SUCCEEDS? 
Laura Adler-Greene ................................................................... 11 
 
THE FUTURE OF DISABILITY RIGHTS PROTECTIONS FOR 
TRANSGENDER PEOPLE 
Kevin M. Barry & Jennifer L. Levi ............................................ 25 
 
THE APPLICATION OF TITLE II OF THE AMERICANS WITH 
DISABILITIES ACT TO EMPLOYMENT DISCRIMINATION: WHY THE 
CIRCUITS HAVE GOTTEN IT WRONG 
William Brooks .......................................................................... 73 
 
FREE APPROPRIATE PUBLIC EDUCATION AFTER ENDREW F. V. 
DOUGLAS COUNTY SCHOOL DISTRICT (2017) 
Terrye Conroy & Mitchell L. Yell ............................................ 101 
 
PRESCHOOL AND LEAD EXPOSED KIDS:  
THE IDEA JUST ISN’T GOOD ENOUGH 
Karen Syma Czapanskiy .......................................................... 171 
 
REVISITING ASHLEY X: AN ESSAY ON DISABLED BODILY INTEGRITY, 
SEXUALITY, DIGNITY, AND FAMILY CAREGIVING 
Julia Epstein & Stephen A. Rosenbaum ................................... 197 
 
CANINES IN THE CLASSROOM REDUX: APPLYING THE ADA OR THE 
IDEA TO DETERMINE WHETHER A STUDENT SHOULD BE ALLOWED 
TO BE ACCOMPANIED BY A SERVICE ANIMAL AT A PRIMARY OR 
SECONDARY EDUCATIONAL INSTITUTION 
Rebecca J. Huss ....................................................................... 235 
 
1
et al.: Table of Contents
Published by Digital Commons @ Touro Law Center, 2019
ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT: THE SUPREME 
COURT’S ELUSIVE ATTEMPT TO CLOSE THE GAP BETWEEN SOME 
EDUCATIONAL BENEFIT AND MEANINGFUL EDUCATIONAL BENEFIT 
Alyssa Iuliano .......................................................................... 261 
 
LET’S TRY AGAIN: WHY THE UNITED STATES SHOULD RATIFY THE 
UNITED NATIONS CONVENTION ON THE RIGHTS OF PEOPLE WITH 
DISABILITIES 
Arlene S. Kanter ....................................................................... 301 
 
ADVOCATING FOR CHILDREN WITH DISABILITIES IN CHILD 
PROTECTION CASES 
Joshua B. Kay .......................................................................... 345 
 
I’LL SEE YOU IN COURT, BUT NOT PURSUANT TO DASA 
Adam I. Kleinberg & Alex Eleftherakis ................................... 367 
 
ENDREW F.’S JOURNEY TO A FREE APPROPRIATE PUBLIC 
EDUCATION: WHAT CAN WE LEARN FROM LOVE? 
Randy Lee ................................................................................ 379 
 
“SOME THINGS ARE TOO HOT TO TOUCH”: COMPETENCY, THE 
RIGHT TO SEXUAL AUTONOMY, AND THE ROLES OF LAWYERS AND 
EXPERT WITNESSES 
Michael L. Perlin, Alison J. Lynch &  
Valerie R. McClain .................................................................. 405 
 
MIXED SIGNALS: WHAT CAN WE EXPECT FROM THE SUPREME 
COURT IN THIS POST-ADA AMENDMENTS ACT ERA? 
Nicole Buonocore Porter ......................................................... 435 
 
BATTLING IMPLICIT BIAS IN THE IDEA TO ADVOCATE FOR AFRICAN 
AMERICAN STUDENTS WITH DISABILITIES 
Dustin Rynders ......................................................................... 461 
 
WHAT’S THE CRAIC? HEALTH CARE FOR DEAF PEOPLE IN 
NORTHERN IRELAND 
Michael A. Schwartz ................................................................ 481 
 
THE LEAST RESTRICTIVE ENVIRONMENT FOR PROVIDING 
EDUCATION, TREATMENT, AND COMMUNITY SERVICES FOR  
PERSONS WITH DISABILITIES: RETHINKING THE CONCEPT 
Donald H. Stone ....................................................................... 523 
 
 
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ENDREW F. CLAIRVOYANCE 
Mark C. Weber ......................................................................... 591 
 
WHY AMERICA IS BETTER OFF BECAUSE OF THE AMERICANS WITH 
DISABILITIES ACT AND THE INDIVIDUALS WITH DISABILITIES 
EDUCATION ACT  
Peter Blanck ............................................................................. 605 
3
et al.: Table of Contents
Published by Digital Commons @ Touro Law Center, 2019


Conroy, Terrye

Yell, Mitchell L.

Free Appropriate Public Education After Endrew F. v. Douglas County School District (2017)

Stone, Donald H.

The Least Restrictive Environment for Providing Education, Treatment, and Community Services for Persons with Disabilities: Rethinking the Concept

Commenting on Chaim Saiman’s book, Halakhah: The Rabbinic Idea of Law, this essay views the difficulty of defining halakha as indicative of the universal challenge of defining the bounds of what constitutes “law.” Considering the dynamic of contingent norms, social context, history, and narrative that shapes the meaning of law, it focuses on a series of decisions by a federal district court judge in connection with the case of Bayless v. United States (1996) involving the sufficiency of reasonable suspicion to justify a police stop. Tracing the slippage in this case between holding and dicta, among other sources of authority and bases of narrative, the essay examines the contingent authority of legal rules and their construction through social narratives in both the public and private American space

Kastner, Tal

Digital Commons @ Touro Law 
Center 
Scholarly Works Faculty Scholarship 
2019 
Defining Law 
Tal Kastner 
Touro Law Center, tkastner@tourolaw.edu 
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 Part of the Civil Law Commons, Contracts Commons, Courts Commons, and the Social Justice 
Commons 
Recommended Citation 
Tal Kastner, Defining Law, 64 VILL. L. REV. 693 (2019). 
This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Touro Law 
Center. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ 
Touro Law Center. For more information, please contact lross@tourolaw.edu. 
 
 
               
             
              
            
        
           
           
          
             
           
             
               
 
         
            
              
              
          
            
            
           
             
            
          
           
          
        
              
         
            
            
         
            
             
             
           
               
              
       
  
          
            
          
           
  
            
          
               
    
     
      
           
          
              
           
          
           
             
           
           
          
          
       
           
          
           
           
   
        
        
          
            
         
     
          
          
        
         
           
    
           
          
           
         
 
 
          
   
 
          
           
           
             
          
         
   
         
            
       
          
         
            
           
            
             
           
     
        
            
           
           
    
       
           
            
        
          
           
            
       
             
             
         
          
          
            
        
             
            
          
           
           
       
   
  
          
          
          
           
           
           
            
          
          
              
         
           
            
     
         
         
           
         
       
            
           
           
            
          
        
          
       
         
           
           
             
           
           
   
         
          
         
          
          
           
   
    
   
         
     
   
 
          
          
             
            
          
         
           
           
           
          
            
      
          
            
        
        
             
          
        
           
        
         
            
           
         
       
           
       
          
        
              
           
         
           
          
             
    
 
 
 
    
             
     
      
 
  
            
          
           
         
          
          
         
            
            
         
          
         
           
       
        
            
         
             
           
           
            
       
     
            
         
               
          
           
         
             
        
        
            
          
            
            
            
           
            
          
          
      
      
        
          
    
   
   
          
          
          
        
         
          
           
       


Defining Law

Post, Deborah W.

TOURO LAW JOURNAL OF RACE, GENDER, & ETHNICITY 
 
4 
 
INTRODUCTION 
DEBORAH W. POST 
 
 
At the beginning of the academic year, 2015-2016, I announced my intention to retire at 
the end of the year. I knew the transition, a re-definition of self, would be difficult. Teaching and 
writing, working with students and colleagues at Touro and other law schools, was more than a 
job.  It was the way in which I defined myself.   
 
 There are so many ways in which my life has been constructed from or built on 
relationships that developed over thirty plus years of teaching.  My life as a teacher was shaped by 
my commitment to students, by my relationships with colleagues within the academy and by the 
opportunities I have had to write articles and books.  
 
Everything begins at home and Touro Law Center was my home for almost 30 years.   
During my career I have worked with faculty at law schools where I was a visiting professor, with 
faculty who were members of sections of the American Association of Law Schools as well as 
members of the board and committees of the Society of American Law Teachers. All of these 
connections mattered.  Each of them offered me an opportunity to work on or for social change.  
Each provided meaning because I was actively engaged in work that I hoped would increase access 
to legal education for students who might not have had access in the past because of their race, 
ethnicity, gender or class.  As a teacher I wanted to show students why law matters, how it supports 
and recreates structures of subordination but also how it can be used to solve individual and 
collective problems.  
 
If I had to choose, I would say that there are two professional organizations that have meant 
the most to me.  There was no term for them back then, but today we would probably label them 
“affinity” groups.1 I think it is fair to say that if I had not “found” these organizations or if they 
had not found me, I might not have survived my first few years in the academy.  
                                                 
1 The Merriam-Webster dictionary defines an “affinity group” as “a group of people having a common interest or 
goal or acting together for a specific purpose.” MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/affinity%20group (last visited Nov. 6, 2018). 
   
Over the years, particularly in educational and corporate settings, affinity groups have come to be 
associated with efforts to increase diversity and promote an inclusive environment.   
Many leaders in the diversity and HR areas believe that affinity groups actually help improve employee 
satisfaction, foster an atmosphere of inclusion, and serve as an important tool for developing employees. 
Others view affinity groups as a way to combat the feelings that some employees are marginalized, or on 
the outside looking in. Affinity group meetings can provide a place to experience business and social 
inclusion for those who may feel outside the mainstream of the organization's social or operational 
structure. 
 
My favorite definition comes from a website that promotes “resilience circles.”  An affinity group on that 
site is defined as “a small group of people who support each other and work to change the world.”   “What is an 
Affinity Group?” RESILENCE CIRCLES, (May 17, 2012), http://localcircles.org/2012/05/17/what-is-an-affinity-
group/. 
  
 
TOURO LAW JOURNAL OF RACE, GENDER, & ETHNICITY 
 
5 
 
 
I speak of organizations, but organizations are made up of people who act individually and 
collectively to achieve a particular purpose.  Sometimes they are formed deliberately and 
consciously.  Sometimes they seem to arise spontaneously and organically.  The two organizations 
which were most important to me in my formative years as a law professor were the Northeast 
People of Color Scholarship Conference (NEPOC) and the Northeast Corridor Collective of Black 
Women Law Professors (Northeast Corridor Collective).  
 
For many years now I have been on the planning committee for the Northeast People of 
Color Conferences. In the spring of 1998, I helped organize the Third Annual Northeast People of 
Color conference which was held at Touro Law Center.  Many of the papers presented at that 
conference were published in the Touro Law Review as a symposium called The Salience of Race: 
Race in America.  Last year, eighteen years later, in my last year as a law teacher at Touro, I asked 
Professor Elaine Chiu, the Director of the Ronald H. Brown Center for Civil Rights and Economic 
Development at St. John’s University School of Law and Director of NEPOC, if Touro Law Center 
and St. John’s University School of Law could co-sponsor NEPOC in the Spring of 2016.   
 
The initial planning meeting took place during the AALS meetings in New York City in 
January of 2016. Professors Eric Miller and Solangel Maldonado, Elaine and I discussed the theme 
and topics which might be addressed at the conferences.  Paula Johnson and Paulette Caldwell 
were among those who participated in a refinement of theme for the conference. We settled on the 
title “Confronting the Violence of our Times: The Role of the Legal Academy.” Professors 
Deseriee Kennedy and Cynara McQuillan were the working group on the ground at Touro.   
 
NEPOC is an academic conference.2 NEPOC conferences have been held over 22 years 
with the exception of those years when all of the regional people of color conferences came 
together to hold a combined National People of Color Conference. NEPOC conferences have been 
held at Western New England University College of Law, New England School of Law, UMass 
Dartmouth (formerly Southern New England School of Law), Boston University School of Law, 
Suffolk University School of Law, Hofstra Law School, CUNY Law School, among others and in 
Bermuda, the Bahamas and Puerto Rico.  
 
There are panel discussions and presentations of works in progress. NEPOC has been a 
place where the achievements of faculty of color are recognized.  The two awards that are 
conferred are the Haywood Burns/Shanara Gilbert Award for an activist teacher/scholar or activist 
lawyer and the Kellis Parker Award named for the first black faculty member at Columbia Law 
School who fought for greater diversity in legal education.   
 
In 2016, I felt that it would be appropriate to give the Haywood Burns/Shanara Gilbert 
Award to a group rather than an individual, for the first time.  I nominated the Northeast Corridor 
Collective of Black Women Law Professors.  I nominated that group even though the Northeast 
Corridor Collective no longer exists. The women who were part of that Collective have not 
forgotten how important it was in their development as law professors and scholars.   
 
                                                 
2 See Robert Ward, Northeast People of Color Conference, 8 J. OF RACE GENDER & ETHNICITY 1 (in this issue). 
TOURO LAW JOURNAL OF RACE, GENDER, & ETHNICITY 
 
6 
 
I believe that the Northeast Corridor began spontaneously in response to a felt need.  It was 
described by Emma Coleman Jordon as a group with a “collaborative style of governance” with a 
“non-hierarchical structure and process.”3  We met in the homes of members in meetings that 
moved up and down the northeast corridor from New York to Philadelphia to the District of 
Columbia.  The quarterly meetings, as Professor Jordon described them, were a place where there 
was an exchange of “ideas in the development of black feminist theory and practice.”4  
 
I would describe those meetings as one of a very few “safe spaces” for black women 
faculty.   The importance of a safe space cannot be overstated.  It was, after all, an era when there 
was open hostility and overtly racist attacks on faculty of color and especially women of color.5 
“Non-hierarchical” meant that within this group, the ranking of schools did not matter.  At that 
time, Touro was only provisionally accredited.  I did not perceive any difference in the way I was 
treated by the women in that group.  There were no cliques in the Northeast Corridor, no 
assumptions about the intelligence or value of the contributions each of us made to the discussions 
that occurred.  
 
Emma Coleman Jordon organized an effort to publish essays and articles by some of the 
women in the Collective and these essays were published in the Berkeley Women’s Law Journal 
in 1991.  In her Introduction to that volume, she reported that 16 women were at the first meeting 
in 1988 but by the time the symposium issue was published there were 91 women on the mailing 
list.6 The articles published in the issue were, according to Professor Jordon, “…individual and 
collective efforts to undertake the difficult task of self-definition.” 7 My article, Reflections on 
Identity, Diversity and Morality,8 was one of the articles included in the issue.  
 
And yet, as much as it meant to all of us, such a loose confederation of teachers and scholars 
could not be sustained.  As Robert Ward has pointed out in his essay, it has become a tradition at 
NEPOC conferences to honor the “trail blazers, “the pioneers, the “firsts” who paved the way for 
                                                 
3 Emma Coleman Jordon, Black Women in the Legal Academy, 6 BERKELEY WOMEN’S L.J. 1 (1990-91) n.5. 
4 Id. at 3, n.11. 
5 Two of the more egregious attacks which I remember occurred in the 1990s. Professor Jordon credits one of them, 
“The Harvard Controversy,” as the catalyst for the symposium issue of the Berkeley Women’s Law Journal.  Id. at 
4.  There was a controversy over the treatment of Regina Austin, a tenured faculty member at University of 
Pennsylvania Law School, who was a visitor at Harvard Law School.  In an article published in the New York 
Times written by Fox Butterfield, included quotes from students in Professor Austin’s tort class. No one should ever 
rely on a first year student’s evaluation of their first law school classes, but this reporter for the New York Times 
included a comment by a student who said that Professor Austin “had shown favoritism to minority students” and 
then complained that her class was “more sociology than law.” See Fox Butterfield, Harvard Law School Torn by 
Race Issue, NYTIMES, April 26, 1990.  My assessment is that this is a classic example of what is commonly 
described as an expression of “white privilege.”  
Another example of these attacks appeared in an article written by Heather McDonald and published in City 
Journal, a publication of the Manhattan Institute, which describes itself as “a leading free market think tank.”   Ms. 
McDonald wrote an article that attacked critical legal theory – particularly critical race theory and feminist theory.  
And while she dismisses the “legal storytelling movement,” she began her article with a quote from a student at New 
York University Law School who said she was “going home crying every day” because she was so unhappy in 
Professor Paulette Caldwell’s class on race and legal scholarship. Heather MacDonald, Law School Humbug, CITY 
JOURNAL, AUTUMN 1995.  
6Jordon, supra n.3.  
7 Id. at 4.  
8 Deborah Waire Post, Reflections on Identity, Diversity and Morality, 6 BERKELEY WOMEN’S L.J. 136 (1990-1991).  
TOURO LAW JOURNAL OF RACE, GENDER, & ETHNICITY 
 
7 
 
those of us who followed.9  The award to the Northeast Corridor Collective was timely and well 
deserved.  
  
                                                 
9 See Derrick Bell, A Colony at Risk, 15 TOURO L. REV. 347 (1999) (describing the NEPOC meeting at which 8 
faculty of color were honored who had been in teaching for 25 years or more.  Those faculty members were John 
Baker, Albany, Frank Bae, New England School of Law, Frederick Tse Shyang Chen, Quinnipiac Law School, John 
Gregory, Hofstra University School of Law, Larry Palmer, Cornell Law School, and Surya Prakash Sinha, Pace Law 
School and the A Colony at Risk author, Derrick Bell, who was at New York University School of Law at that time). 
TOURO LAW JOURNAL OF RACE, GENDER, & ETHNICITY 
 
8 
 
 
 
 
NORTHEAST PEOPLE OF COLOR LEGAL SCHOLARSHIP CONFERENCE 2016 
 
 
From Left: Professor Lani Guinier, Harvard Law School; Professor Emily M.S. Houh, University of Cincinnati College of Law; Professor Nancy 
Ota, Albany Law School; Professor Donna Young, Albany Law School; Professor Patricia J. Williams, Columbia Law School; Professor Paula C. 
Johnson, Syracuse University College of Law; Professor Deborah W. Post, Touro Law; Professor Paulette M. Caldwell, NYU Law; Professor 
Anthony Paul Farley, Albany Law School; Judge Fern A. Fisher, Hofstra Law; Professor Odeana R. Neal, University of Baltimore School of Law; 
Robert V. Ward, Jr., Esq. 
  


Introduction

Iuliano, Alyssa

Endrew F. v. Douglas County School District: The Supreme Court’s Elusive Attempt to Close the Gap Between Some Educational Benefit and Meaningful Educational Benefit

Not a member yet

Double Jeopardy

Table of Contents

Free Appropriate Public Education After Endrew F. v. Douglas County School District (2017)

The Least Restrictive Environment for Providing Education, Treatment, and Community Services for Persons with Disabilities: Rethinking the Concept

Defining Law

Introduction

Endrew F. v. Douglas County School District: The Supreme Court’s Elusive Attempt to Close the Gap Between Some Educational Benefit and Meaningful Educational Benefit

The Blurred Protection for the Feel or Groove of a Song Under Copyright Law: Examining the Implications of Williams v. Gaye on Creativity in Music

The Asylum Makeover: Chevron Deference, the Self-Referral and Review Authority

Due Process Supreme Court Appellate Division

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3,484