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Denver Law Review Announces 2016 Emerging Scholar Award Winner

The Denver Law Review is pleased to announce that it has selected Adam Feldman, a Ph.D. student at the University of Southern California, for the 2016 Emerging Scholar Award.

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DLR Online Proudly Presents a Special Issue, Navigating the Nuance: Pressing Issues in M&A Law and Practice

DLR Online's new special issue, Navigating the Nuance: Pressing Issues in M&A Law and Practice, features eleven student articles covering recent topics in mergers and acquisitions. This is the first collaboration between the Denver Law Review, DLR Online, and Professor Michael R. Siebecker. 
Prior special issues from the DLR Online can be found here.

DLR Online Proudly Presents a Special Issue: The Shareholder Proposal Rule and the SEC

DLR Online's new special issue, The Shareholder Proposal Rule and the SEC, features eleven student articles covering Rule 14a-8, the epicenter of the shareholder rights movement. The issue represents the continued collaboration between the Denver Law Review, DLR Online, and Professor J. Robert Brown, Jr. 
Explore a thoughtful introduction to the issue by Professor Brown. Prior special issues from the DLR Online can be found here.

DLR Online Proudly Presents a Special Issue 

Taking it to the Next Level: Your Course, Your Program, Your Career

DLR Online's new special issue, Taking it to the Next Level: Your Course, Your Program, Your Career, features three articles by legal writing Professors who share their experiences in the classroom.


Vol. 94 Emerging Scholar Award: Request for Submissions

The Denver Law Review is pleased to announce the 2016 Emerging Scholar Award. This exclusive publication opportunity is open to all scholars who (1) have received their J.D. as of March 1, 2016, (2) have not yet accepted a tenure-track teaching position, and (3) have not held a full-time teaching position for more than three years.

The selected recipient will receive an award of $500, and the Denver Law Review will publish the winning entry in Issue 1, Volume 94, scheduled for early 2017.

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Thank you to our panelists and attendees for a great symposium!

On February 4 & 5, 2016, The Denver Law Review presented its annual symposium on the role of intellectual property law in bringing new technologies to fruition and to the market. - Future World IP: Legal Responses to the Tech Revolution.

The Mabel Y. Hughes Charitable Trust was the Platinum Sponsor of the Denver Law Review 2016 symposium.

We've Changed Our Name!

The Denver University Law Review is now the Denver Law Review, and the DULR Online is now DLR Online.

Volume 93 Staff Announced

The Denver Law Review is excited to announce the Volume 93 Staff. Please join us in congratulating them in this accomplishment and supporting them in continuing the fine tradition of the Denver Law Review. Please click here to view the masthead.

Please click here to view the photo masthead.

Denver Law Review Announces Emerging Scholar Award

The Denver Law Review is pleased to announce that it has selected Kate Sablosky Elengold, Practitioner-in-Residence at American University's Washington College of Law, for the Emerging Scholar Award of Volume 93.

Click here for more information!


Subscriptions and Submissions

For information on how to subscribe to the Denver Law Review, please click here.

For the guidelines on how to submit an article to the Denver Law Review, please click here.

Main | Panel 6: K-12 Public Education Today: The Legacy of Keys and the Promise of Lobato in the Metropolitan Community »

Panel 7: What does the end of Keyes mean and what are the opportunities for lawyers and students to influence equality in education?

Panel Summary Prepared by Katy Raffensperger

Dr. Tom Romero II, Associate Professor of Law at the University of Denver Sturm College of Law, opened the discussion by describing the pivotal nature of the panel’s topic: What does the end of Keyes mean and what are the opportunities for lawyers and students to influence equality in education? Dr. Romero discussed the interconnectedness of the education system by highlighting the idea that problems in K-12 schools create pipeline problems for higher education.  These problems produce a need to seek out innovations for higher education in light of the characteristics of modern K-12 citizenry and to address the legal challenges we are currently seeing.

Dr. Catherine Horn, Associate Professor in the Department of Educational Psychology at the University of Houston, continued the discussion from her perspective as a social scientist. Dr. Horn began by citing a study conducted in Denver Public Schools in 1995 when mandated desegregation in the school district had come to an end. The study focused on the negative effects of the end of mandated desegregation on academic trends. After explaining that Denver’s experience was salient to the rest of the country, Dr. Horn turned her discussion to earlier studies which had focused on the positive effects of desegregation on those same academic trends. These studies found that desegregation enhances black achievement. However, Dr. Horn explained that these studies had some drawbacks. These included: 1) other studies concluded that desegregation’s effect on black academic achievement was modest and context specific; and 2) the early studies measured academic achievement in terms of test scores, which Dr. Horn noted is a valid but limited way of understanding achievement. Dr. Horn explained that other studies found the positive effects of desegregation to be higher for reading abilities rather than math abilities, and stronger for high achieving blacks rather than low achieving blacks. The studies also found a strong association between academic achievement and attitudinal outcomes.

Dr. Horn went on to explain that much of the criticism of these older studies revolves around the methodological approaches used. Newer studies, using broader methodological approaches, as brought forward in Parents Involved, have found that certain conditions need to be in place for the benefits of desegregation to be realized. These conditions include desegregating at the earliest possible grade, utilizing heterogeneous instructional strategies, recognizing the idea of a critical mass from each racial group, offering integrated extra-curricular activities, hiring a diverse staff with specialized training, and providing for smaller learning groups.

Dr. Horn concluded this discussion by reviewing a study which found that long term positive effects that result from desegregated conditions like those just mentioned are diminished when there is no court oversight and court ordered levels of integration are not maintained. When this happens, the “return to neighborhood” concept is implicated and white populations begin to swing one way or the other depending on the location of the school. These swings occur in opposite correlation to the status of the free and reduced lunch population. When the law steps out in this way, social science and other disciplines need to fill the gaps. This creates a great need for social science to partner with the legal community to pursue the causes of desegregation with their complimentary skills.

Dr. Hava Gordon, Director of Gender & Women’s Studies and Associate Professor in the Department of Sociology and Criminology at the University of Denver, continued the discussion by speaking about community movements for social justice and their relationship to school reform. Dr. Gordon has studied high school student activism as it relates to educational justice. She has found that youth’s voices are marginalized in the realm of educational policy even though they are the subjects of the discussion. Dr. Gordon began by discussing the image from the movie Waiting for Superman in which a teacher is shown pouring knowledge into a student’s head. She contrasted this popular image of youth with the fact that in reality youth are the spearheads of many educational movements.

To place these youth movements in context, Dr. Gordon listed some of the many issues faced by today’s youth: juvenile incarceration (the “school to jail” track), student debt, under/unemployment, juvenile poverty, wealth inequality, and youth homelessness (which constitutes a growing population in Denver Public Schools). These issues have led to a new era of school reform focused on fixing educational inequities. The new era of school reform has focused on deregulating the school system in favor of charter schools and education management organizations, mayoral control of school boards, attacks on teachers unions, prioritization of individual advancement over public well-being, and use of market and investor language to talk about problems and solutions. These points of focus have caused school reform to become the centerpiece of gentrification.

Interestingly, these foci sharply contrast with the visions of youth about the same educational reform movement. Students want to reform zero tolerance policies which have disparate racial effects on educational excellence. They want to end criminalization of undocumented students and give them a pathway to higher education. Youth have championed gay-straight alliances, called for ethnic studies curricula, and created student unions to have a say in school provided health care. They have called for youth centers to provide spaces to talk about issues and share information and have staged “bathroom campaigns” equating the right to access bathrooms with the right to education. When neighborhood schools are closed down, youth have held walkouts to try and save them. And yet, these movements receive little outside attention.

Dr. Gordon next surveyed the relationship and conflicts between the formal educational reform movement and the local youth movements. Both sides of the movement call for urgency and incorporate a focus on higher education. On the other hand, conflicts between the two movements abound. Formal reformers don’t see segregation as an issue, they see opportunities that exist without pushing for integration. These reformers still use civil rights rhetoric, but instead of tackling the economic and racial disparities relating to the rhetoric, they focus on simple teaching as the pathway to liberation. Interestingly, these reformers also still carefully protect white educational advantage. The reformers don’t trust the communities in which the reform is needed and say, either implicitly or expressly, that although the schools in those communities are great for “those” kids, they would never send their own kids there. This makes white middle class educational advantage something that needs to be worked around. Rethinking this ethic is worth the risk in regards to educational reform.

The panel discussion then turned to two panelists representing higher education institutions that have been addressing the issues discussed: Dr. Arthur C. Jones and Dr. Stephen M. Jordan. Dr Arthur C. Jones, Associate Dean for Inclusive Excellence and Clinical Professor of Culture and Psychology at The Women's College of the University of Denver, began this portion of the discussion. Dr. Jones started off with an informative personal narrative. He explained the history of his black parents in the 1940s, of how they met and started a family. His parents had always dreamt of going to college and although neither was able to, they were still leaders in their church and passed on their dreams to their children. Dr. Jones’s older brother went to college and skated by, joined the army, and eventually earned his Ph.D. in Vienna. He was a role model for the family. One of Dr. Jones’s sisters got married young and started a family. Although she was able to go to college later in life, she had only a short teaching career after graduating. Dr. Jones’s other sister got pregnant at a very early age and after a life of struggle, passed away young from the effects of smoking. Dr. Jones himself, following in the footsteps of his brother, went to college and then to graduate school. He spent three years in the Navy and eventually went on to get his doctorate.

Dr. Jones explained that his own personal, family narrative highlights the intersection of race, class, and gender in the path to higher education. While the path was fairly straight for Dr. Jones and his brother, his sisters at a young age trimmed their ambitions early. Although this narrative came out of the mid-1900s, it is still prototypical of the 21st Century. While everyone says that today every child has the opportunity to attend four years of residential college after high school (the prototypical “college experience”), this experience rings true for only a small minority of students. For example, in 2010, only 15% of college students’ experiences matched this “norm”. The remaining students are: older, married, have children, attend community college, and/or work part-time. These deviations from the norm are especially true for students of color. Although the population of students of color is increasing in higher education, many attend multiple institutions, incur great amounts of debt, and never end up earning a degree.

Dr. Jones explained that fortuitous factors were at play for him, but that he currently sees an increasing need for higher education opportunities for adults with complicated lives. These adults need extra mentoring and support to overcome the barriers that face their generation, known as “post-traditional” students. Dr. Jones explained that this term is used rather than “non-traditional” students because “non” implies deviation from the norm. Alternatively, “post” communicates the reality that the “norm” higher education experience is a thing of the past.

Dr. Jones concluded by summarizing how the Women’s College at the University of Denver embodies this new reality. The students at the Women’s College have a mean age of 37, are 15% African American, 22% Latina, and include many single parents. The University allows these students to attend the Women’s College at half of the cost of regular tuition and offers a number of loans and scholarships to help make the costs of attendance more manageable. Dr. Jones noted that the demands of life still sometimes intervene, but the chances for these students are maximized by the faculty at the Women’s College who provide a welcoming and inclusive environment. These are lofty, but necessary goals.

The discussion then turned to Dr. Stephen M. Jordan, the President of Metropolitan State University of Denver (“MSUD”), who spoke about the intersection of public policy, law, and institutional culture. He addressed the idea that the ability of higher education to meaningfully engage in change is related to the culture of the institution and its intersection with law and public policy.

Dr. Jordan began by describing the creation of MSUD noting change, social justice, and necessity as the circumstances that gave rise to it. MSUD, in turn, created new opportunities and educational models to remedy the findings that state schools were producing less than half of necessary workers and that the current higher education capacity was being strained. Colorado had the need for an affordable, egalitarian school. MSUD was envisioned as a street smart school for local kids, no matter their background, which supported the right to education. In that regard, MSUD has a modified open-admissions policy in which any student twenty-one years of age or older with a high school diploma or GED must be admitted.  Underlying all of MSUD’s decisions is the principal of making high-quality, affordable education available to underrepresented students.

Ironically, the campus was created by using legal authority to displace the minority community it was created to serve. Consequently, MSUD pledged commitment to the people it displaced by offering free admission to descendants of “displaced Aurarians.” The school is intended to be a place where futures can be recreated and educational justice can be realized.

MSUD focuses on increasing access and opportunities for its students to make a living wage. Today MSUD educates more undergraduates than any other school in Colorado. It consists of 33.5% students of color. MSUD is proud to have grown the number of students of color majoring in stem sciences by 61%, more than any other college in Colorado. Relatedly, MSUD recognized and succeeded to the need to attain Hispanic Serving Institution status and now includes 13-19.5% of its population as Latinos.

Perhaps most notably, MSUD also supports the Asset Bill, which is aimed at extending higher education to the “Dreamer” population. MSUD looked at other states and worked with lawyers to carefully create a tuition policy for this population protected from outside challenge. This tuition policy deviates from using legal domicile as a basis for tuition and instead looks at the location of high school attendance and graduation. The resultant tuition policy allows MSUD to reduce tuition for the Dreamer population down from the non-resident rate. The Attorney General responded to this policy by calling the tuition a public benefit which should not be available to those without lawful presence in the United States. However, the lawyers for MSUD researched whether federal authorities would consider the policy to be public assistance and concluded that they would not. Students continue to utilize this tuition rate, bringing the richness of the immigrant experience to MSUD. Dr. Jordan described this as both the smart and right thing to do, because Colorado needs people who are ready to enter the workforce with a higher education. Nonetheless, MSUD, with the highest student rate in Colorado, is also the lowest funded. Analyzing the costs of daycare and comparing the figures to MSUD’s funding show that the public has decreed a higher education degree to be worth less than daycare. Still, MSUD is proud to be pushing the limits.

The conversation then turned to Dr. Lisa M. Martinez, Associate Professor of the Department of Sociology and Criminology at the University of Denver, who provided a legal perspective on access to higher education. Dr. Martinez explained that it is a momentous time for higher education, because the Supreme Court is reviewing many challenges to Affirmative Action in the higher education field. This provides a need for extra-judicial avenues to shape educational equality and opportunities. Dr. Martinez explained that there is a tension between race/ethnicity and educational opportunity. This is exemplified in judicial skepticism about using race conscious tools in education in the face of growing support for integration in schools. The increase in diversity has been coupled with an increase in disparity. The workplace is no longer expected to have a racial majority, and yet school segregation is at a high point for the last forty years.

Dr. Martinez explained that school reform cannot be decoupled from integration and diversity. There are many benefits of a diverse learning environment, most notably is that it allows students to compete in a diverse workplace. Consequently, a diverse learning environment is no longer just a moral necessity, but an economic necessity. This point notwithstanding, education remains an important civil rights issue. President Obama has touted that he wants to lead the world in college graduation rates.

Dr. Martinez explained that an increasingly diverse America needs discussion about pathways to leadership and success for students of color in higher education. She surveyed Supreme Court jurisprudence on this issue speaking specifically about Brooder, which held that a University could craft a carefully tailored race conscious policy for admission, thereby acknowledging the persistence of racial disparity. Even still, Supreme Court jurisprudence and legislative policy still reflect indecision on the issue. There is a tension between the consensus that racial inequality is unacceptable and the discomfort with any type of allocation based on race.

Dr. Martinez then described the current constraints on opportunity for minority students. Many battles have been lost in the court of public opinion, which has resulted in a loss of public support for affirmative action policies. For example, there was a lot of backlash against Brooder, with many universities receiving complaints about their race conscious programs. At the same time, the universities were not receiving any guidance from the political branches about what was, and was not constitutional. As a result, many policies were abandoned. This shows that civil rights become limited when it is confined only to litigation.

The challenge that results from the abounding indecision and mixed messages is to craft policies that embrace seemingly competing interests. These policies need to capture the benefits of diversity without using race to determine the benefits and burdens. For example, many ballot initiatives have been more successful where they have capitalized on general notions of fairness and achievement of colorblind education rather than speaking about the benefits of race conscious policies. In order to broaden pathways to leadership for students of color, it is important to place admission policies into a larger context that speaks of the benefit of the policies to all Americans. The policies need to reinforce the message of educational inclusiveness and the importance of maintaining educational democracy. This speaks to the need to look for pathways beyond court jurisprudence that embrace educational opportunities. There is a need for legislative advocacy, administrative agency support in crafting policies, and dissemination of collected data. For example, entities like the Office of Civil Rights, which hosts a robust data collection system showing problems in terms of opportunity gaps, can provide help and guidance for universities that want to get acknowledgment of the essentialness of integrated schools. For this reason, there is a strong need for coalition building partnerships.

Devon W. Carbado, Professor of Law at UCLA School of Law, spoke last on the issue of affirmative action. Affirmative action is a very important policy for effectuating educational access. It is not, however, a fix to structural problems. This is exemplified by Bakke, a case in which Justice Powell authored a concurrence that negotiated a tradeoff for affirmative action. Professor Carbado viewed this tradeoff as a loss. In Bakke, UC Davis was defending its affirmative action policy under the constitutional standard of strict scrutiny. The compelling interests at issue were combatting societal discrimination, serving minority communities, underrepresentation, and diversity. The Bakke court held that the quota system at issue was not tailored narrowly enough. Justice Powell, in his concurrence, agreed only with the diversity issue, the tradeoff for the support of affirmative action.

Professor Carbado explained that a number of consequences arose from the Bakke opinion. For example, many of the issues in the case were not considered to be in dispute by the court. Consequently, the affirmative action issue being considered started out with five automatic “losses” leaving only very narrow grounds on which to pursue the affirmative action policy. For example, affirmative action was considered to be permissible at best, and analyzable only under the strict scrutiny standard. Professor Carbado explained that this means that in the area of affirmative action, so much has been given up already.

Another consequence of the Bakke opinion has been the ideas about race which have spread from the opinion to outside of the Affirmative Action context. These are ideas such as the ideology of “colorblindness,” formal rather than substantive treatment of racial disparity, the equation of discrimination with intent, and the determination of the race per se classification as suspect. These ideas have spread from the Bakke opinion to arenas such as voting rights, employment discrimination, and voluntary integration contexts. This leakage has limited the general capacity for racial remediation as a function of the idea that Affirmative Action issues provide a rehearsal for racial disputes which are then mobilized in other contexts.

Professor Carbado then provided some solutions to this limitation issue. For example, the ideology of racial colorblindness needs to be challenged and instead looked at through the lens of the social sciences. Currently the ideology waivers between can’t, don’t, and shouldn’t see race. It should revolve around “shouldn’t” see race rather than “can’t” see race. The social sciences can bolster this idea by being used to demonstrate the impossibility of not seeing race. Professor Carbado also suggested taking legal doctrine more seriously. For example, there is a doctrinal contingency to current racial arrangements. This stems from the Korematsu case precedent, even though different kinds of racial consciousness were at play than in modern times. Based on this precedent, cases such as Bakke have articulated the strict scrutiny standard. In doing so, however, the actual language of Korematsu has been lost. In reality, Korematsu articulates the better rhetorical basis for arguing for affirmative action, which is now lost amidst the strict scrutiny requirement.

Finally, Professor Carbado suggested contesting the preference frame that structures affirmative action. People often argue that affirmative action creates imbalance. In reality, the scale is already tipped so far opposite of affirmative action that even when affirmative action comes into play, the baseline for minorities is still not even. Without this perspective, affirmative action is described as a racial preference, when in reality the idea of preference is just one of the arguments that make it hard to defend affirmative action policies.

Professor Carbado finished his discussion by noting that there are many current attempts to shift how affirmative action is understood. One of these attempts is exemplified in a video that Mr. Carbado showed. The video depicted four runners running a marathon. There were two white runners and two black runners. In the video the black runners’ start was delayed until 1964. Thereafter, while the white runners were pictured moving forward without impediment and passing money from one to the other, the black runners were depicted as encountering myriad obstacles. They were rained on, signifying discrimination; tripped, signifying poor schooling; and stopped by a wall, signifying the “school to jail” track. At the end of the video, Professor Carbado noted that there are many more complexities to the situation that are not captured in the video. The real purpose was to exemplify the tracks of life that colored people are forced to run. 

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