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Education Equity and Brown: Reform, Retrenchment, and Exclusionary School Discipline
No full textPublic schools have served as sites of social, political, and legal contestation since their inception in the United States. And, while the pathways of racialized inequalities have arguably waxed and waned, threats of exclusion and segregation—constituted and governed by anti-Blackness—have cast a long shadow on the promise of educational equity. In response to the central provocation of the 2024 Georgetown Journal of Law & Modern Critical Race Perspectives symposium—revisiting Brown v. Board of Education and the struggle for racial equity in education—this Essay seeks to (re)connect the past and present. More directly, through the Critical Race Theory reform and retrenchment dialectic, it attends to the often-overlooked relationship between Brown (violent resistance to integration) and the persistence of physical racial segregation in K-12 classrooms across the country today. By inviting deeper reflection on the oppositional and hierarchical relationship of integration and segregation, this Essay draws on evidence from the historical record in three areas (framing of Blackness, legislation, and empirical data) to centralize how this interlocking dynamic wove an unbreakable fabric of exclusionary school discipline. In approaching Brown in this manner, we aim to elevate two claims. First, the criticalness of identifying exclusionary school discipline as what it truly is and has always been: state-sanctioned legal mechanisms of physical racial segregation functioning under the race-neutral guise of order and safety. As is true in other critiques of Brown, the race-neutral façade cloaking discipline perpetuates narratives of white innocence in the enactment of policies and practices that oppress schoolchildren of color. Second, that exclusionary school discipline legislation–– whether deployed in the years following Brown or advanced in the present day––is education retrenchment legislation that dispossesses children of their right to learn. In provoking a reflective conversation of racial equity and Brown, the praxis of Critical Race Theory challenges us to ask, “now what?” and act collectively against renewed forces that seek to further cement norms of exclusion in public education
One Nation, Under Dobbs: How Dobbs v. Jackson Women’s Health Impacts Data Privacy for All
Get PDFThe Supreme Court has gone against the fundamental principle of Stare Decisis in Dobbs v. Jackson Women’s Health Organization, holding that the constitution confers no right to an abortion. The aftermath of Dobbs shines a spotlight on how reproductive and feminine health data are exploited to target women. From geolocation monitoring to abortion clinics, to women’s search history and private messages being used in her prosecution, the dystopian prospect of surveillance capitalism is now reality for women in the United States. The immediate impact of Dobbs illuminates the need for greater and clearer data privacy protections have never been more necessary.
However, Dobbs’ impact will reach far beyond women seeking reproductive health care or abortions. While the aftermath of Dobbs has already resulted in an attack on women’s data privacy rights, I argue that the complacency with government and private actor’s intrusion -largely due to underdeveloped data privacy legal rights- into women’s most intimate information will inevitably diminish everyone’s data privacy protections over time. Specifically, I argue that the exploitation of such personal data to target women seeking an abortion sets a precedent that will allow countless other groups to have their personal data exploited for whatever their state deems to be a “legitimate government interest.” This paper highlights the importance of developing more comprehensive data privacy laws and regulations
The Case for Downsizing the Corporate Attorney-Client Privilege
Get PDFPrivilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned a rule that concedes that some things are more important than getting to the truth. Indeed, our entire law of privilege stems from the fact that society deems certain relationships important enough to protect their communications even from the truth-seeking process of litigation. The attorney-client relationship is a paradigmatic example. But something has gone seriously wrong with the law’s attempts to transplant protections for an intimate, confessional space for communications between an individual and their attorney onto “artificial creatures of the law”: the modern corporation.
Today’s corporate attorney-client privilege now shields communications across entire constellations of relationships among corporate agents. And as the lines between business and legal advice blur and lawyers become ubiquitous in all aspects of corporate life, an even greater universe of documents and communications may fall outside the bounds of litigation. Privilege logs often obscure the true nature of withheld communications and only moneyed litigants may be able to call an over-withholder’s bluff.
This Article proposes a sea change in the corporate privilege by arguing that courts should restrict recognition of the corporate attorney-client privilege to communications that take place in the context of a Privileged Communications Committee. While some scholars have called for the complete elimination of the privilege for corporate clients, this Article takes a more nuanced view, recognizing that some of the needs underlying the original impetus for the privilege still exist in the corporate context. The problem is that courts have landed on the wrong corporate analog for a human client. The use of a Privileged Communications Committee would serve to reset the balance, drawing the reality of the corporate privilege closer to the judicially articulated justifications for its existence
BORN TO EQUALITY: Minor Children, Equal Protection, and State Laws Targeting LGBTQ+ Youth
Get PDFStates throughout the country are targeting LGBTQ+ youth, singling out transgender youth in particular. Part I of this Article provides an overview of laws targeting LGBTQ+ youth, and argues that many of these laws express animus towards and impose a stigma upon LGBTQ+ minor children. Though they are distinct doctrines, the Court has interwoven animus and stigma- based arguments throughout its gay rights jurisprudence to protect LGBTQ+ individuals from state action that imposes dignitary harm. Laws targeting LGBTQ+ youth often evince the same irrational hostility and stigmatizing purpose that the Court rejected decades ago.
Historically the Court’s LGBTQ+ jurisprudence has focused on adults. Yet, as Part II argues, minor children have a special claim to be protected from animus and stigmatic harm. Throughout its equal protection doctrine, the Supreme Court has repeatedly resolved profound questions of race, sex, gender, sexual orientation, and citizenship by considering how state action affects the lives, interests, and relationships of minor children. This Article demonstrates that the Court has recognized that minor children deserve heightened protection from laws that impair their ability to view themselves, their peers, and their families as equal members of the community.
The upshot of these arguments is that, when considering state laws targeting LGBTQ+ youth, the Court should probe the state’s proffered justification for pretext. As Part III argues, the most common justification for laws targeting LGBTQ+ youth—that such laws protect parental rights— is indeed pretextual. In fact, many recent state laws undermine the rights of parents of LGBTQ+ youth. Part IV proposes an alternative interpretation of recent parental rights rhetoric, arguing that this rhetoric masks a concerted political effort to re-stigmatize LGBTQ+ identity itself
