Current Issue

  • Volume 12,
  • Number 1 -
  • 2016


Lee v. Macon County Board of Education: The Possibilities of Federal Enforcement of Equal Educational Opportunity
Brian K. Landsberg

Lee v. Macon County Board of Education shows the evolution of the role of the three branches in enforcing the equal protection clause in public education in Alabama. All three branches initially acquiesced in the separate but equal doctrine. The executive and the judicial branches rejected the doctrine in Brown, but the legislative branch remained silent until 1964. Despite Congress’ failure to authorize a federal role in desegregation, the Department of Justice was an active participant in Lee beginning in 1963. When Congress finally did act in 1964 to authorize such suits, it encumbered the authorization with severe limitations. Congress also created a parallel enforcement mechanism, in Title VI of the 1964 Act. In later years, Congress and the executive have emphasized general reform of education as the answer, in legislation such as No Child Left Behind. My paper explores the role of the federal government in the statewide desegregation of Alabama’s public schools. Federal court litigation in Lee v. Macon County Board of Education led to an extraordinary remedy and illustrates the potential for the Departments of Justice and Education to play a key role in reviving the quest for equal educational opportunity through desegregation.

From Edward to Eric Garner and Beyond: The Importance of Constitutional Limitations on Lethal Use of Force in Police Reform
Nancy C. Marcus

Treatment as an Individual and the Priority of Persons Over Groups in Antidiscrimination Law
Patrick S. Shin

The Supreme Court has said that the Equal Protection Clause of the Constitution and Title VII’s prohibition of discrimination require that all persons be treated as individuals and that the laws operate primarily to protect “persons, not groups.” This article shows that the legal requirement of individual treatment has two distinct components: a rule invalidating inferences about persons based on their membership in protected groups and a rule prohibiting disparate treatment for the sake of group interests or intergroup equality. The first rule is rooted in moral principles of respect for individual autonomy. The second rule is a principle that gives lexical priority to individual rights over group welfare. Both are formal, anti-classification rules that abjure reliance on group concerns, and both are central to antidiscrimination law. Neither rule, however, mandates group-blindness or entails the categorical irrelevance of group classifications. Antidiscrimination law cannot be completely understood without reference to goals of substantive intergroup equality. The rules of individual treatment and the protection of “persons, not groups” represent formal constraints on the means by which substantive equality can be sought. They should not be mistaken as substitutes for it.

Undocumented Migrants as New (and Peaceful) American Revolutionaries
Daniel I. Morales

This essay situates undocumented migrants in the history of the American revolutionary period. The lawbreaking of both groups produced constructive legal and social change. For example, the masses of American revolutionaries and many of their leading men fought to rid the colonies of hereditary aristocracy. Colonists had come to cherish the proto-meritocracy that had bloomed on colonial shores and rankled at local evidence of aristocratic privilege, like the Crown’s grant of landed estates to absentee English aristocrats.

Today’s equivalent hereditary aristocracy is the citizenry of wealthy democracies like the United States. Hereditary citizens use immigration restrictions to reserve the wealth and privilege of rich-world citizenship for themselves and invited guests. The undocumented peacefully challenge this status quo by migrating and remaining in the United States without permission, securing citizenship for their American-born children, and protesting that “no one is illegal.” In these ways the undocumented seize some of the aristocratic privileges of American citizenship and fight for others. For this and other reasons, the undocumented are contemporary heirs to the revolutionary moment—the true tea partiers of the twenty-first century.

Are Black Parents Locked Out of Challenging Disproportionately Low Charter School Board Representation? Assessing the Role of the Federal Courts in Building a House of Cards
Steven L. Nelson & Heather N. Bennett