High School SCOTUS

A Close Read of the Affirmative Action Decision with Richard Ford Jul 23, 2023

After a brief interlude for an episode of LGBTQ+ rights, Elise is back with a second episode on the affirmative action decision, joined by Professor Richard Ford of Stanford Law School. Professor Ford offers his take on many of the same questions we put forward to Professor Stulberg: Is the diversity rationale still alive? What will the college admissions landscape look like after this decision? And how will socioeconomic status be used as an attempt to maintain diversity? He also walked Elise through the nuances of the majority opinion — namely, the Court refused to overturn Grutter and Bakke, leaving potential room for schools to continue considering race on an individual basis. Finally, Professor Ford spoke to the future of legacy admissions and what the optimal response to this decision would be from institutions of higher education.

Cases mentioned:

Students for Fair Admissions v. President and Fellows of Harvard College (2023)

Regents of the University of California v. Bakke (1978)

Grutter v. Bollinger (2003)

Further reading:

"Bias against Asian-American students is real. Affirmative action isn’t the problem." (Stacey J. Lee and Kevin K. Kumashiro, Vox)

"The SCOTUS decision on affirmative action in colleges, explained." (Fabiola Cineas and Ian Millhiser, Vox)

"The Supreme Court’s ban on affirmative action means colleges will struggle to meet goals of diversity and equal opportunity" (Adewale A. Maye, Economic Policy Institute)

Slowing the Backslide: Protecting LGBTQ+ Rights with Joshua Block Jul 17, 2023

As a brief interlude to coverage of the Court's affirmative action decision, Hannah and Elise sat down with Joshua Block, a senior staff attorney at the ACLU, to discuss the legal battles to stop anti-LGBTQ+ legislation and the implications of the Court's recent decision in 303 Creative LLC v. Elenis. This is a long overdue conversation: LGBTQ+ rights are increasingly under attack across the country, but it is children and students who are most frequently the target of anti-LGBTQ+ legislation, including attacks on their right to learn about sexual orientation and gender identity in schools, their right to read diverse books, and their right to gender-affirming health care. And the conversation is especially timely given the Court's ruling in 303 Creative, holding that Colorado’s anti-discrimination law violated a designer’s right to free speech by requiring her to design a website for a same-sex couple (a form of creative expression, the Court said).

Mentioned in this episode:

303 Creative LLC v. Elenis (2023)

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

Obergefell v. Hodges (2015)

L.W. v. Skrmetti (Sixth Circuit decision lifting injunction against Tennessee's ban on gender-affirming care)

Further reading:

"Advocates plan for battle as DeSantis preps ‘Don’t Say Gay’ expansion" (Brooke Migdon and Lexi Lonas, The Hill)

"The Supreme Court Could Chop Away at Anti-Discrimination Law Based on Literally Nothing" (Matt Ford, The New Republic)

"The Supreme Court’s Disorienting Elevation of Religion" (Kate Shaw, The New York Times)

The end of affirmative action with Lisa Stulberg Jul 12, 2023

Two weeks ago, the Court struck down race-conscious affirmative action in Students for Fair Admissions v. Harvard University. In the first of many episodes to come,Elise and Hannah break down the opinion with Lisa Stulberg, a professor of sociology at NYU's Steinhardt School of Culture, Education, and Human Development. Chief Justice Roberts' opinion answered some of our questions — universities will no longer be able to consider race as they historically have, and this Court no longer sees diversity as a compelling enough reason for affirmative action. But it also raised SO many questions about the future of college admissions and the higher education landscape: Will colleges use socioeconomic status as a proxy for race? Why do the justices fundamentally disagree on the role of racism in American society? What will the Common Application look like next fall? Elise, Hannah, and Professor Stulberg weighed all of those questions, and more, in this episode, so take a listen. And they'll be back in two weeks with more questions (and maybe, more answers).

Mentioned in this episode:

Students for Fair Admissions v. Harvard College (2023)

Grutter v. Bollinger (2003)

Regents of Univ. of California v. Bakke (1978)

California Proposition 209

Further reading:

"Research and Analyses on the Impact of Proposition 209 in California" (University of California)

"The Living Memory of Derek Bell" (The Harvard Crimson)

"The Other Way the Supreme Court is Nullifying Precedent" (Politico)

The Future of Student Loan Debt with Jonathan Glater Jun 07, 2023

It's been a while! In the latest episode of the High School SCOTUS podcast, we're back with a wide-ranging conversation between Elise and Professor Jonathan Glater of the University of California, Berkeley School of Law. Professor Glater is an expert on all things higher education and student loan debt; he is also the Faculty Director of the Center for Consumer Law & Economic Justice at Berkeley. He joined the podcast to discuss two pending cases before the Court, Biden v. Nebraska and US Dept. of Education v. Brown, both of which consider the constitutionality of President Biden's student loan relief policy. But Elise and Professor Glater also took a step out of the legal minutiae to talk about how student debt became a political flashpoint, and why access to higher education has become so culturally and socially divisive in today’s society.

Mentioned in this episode:

Biden v. Nebraska

US Dept. of Education v. Brown

Further reading:

"U.S. Supreme Court's 'major questions' test may doom Biden student debt plan" (Reuters)

"The Supreme Court’s student loans case is about more than student loans" (CNN)

"5 key moments from the Supreme Court showdown over Biden’s student debt relief" (Politico)

Protecting Native American Rights with Rebecca Nagle Jan 29, 2023

On the latest episode of the High School SCOTUS Podcast, Elise sits down with Rebecca Nagle, the host of the This Land podcast from Crooked Media and a powerful activist for indigenous rights. They spoke primarily about two monumental Supreme Court cases, McGirt v. Oklahoma, a 2020 case that considered whether Creek Nation land qualified as a “federal reservation,” and Haaland v. Brackeen, a case currently before the Court that weighs the constitutionality of the Indian Child Welfare Act. Also included: the hidden record in the Brackeen case, Rebecca's take on Justice Gorsuch's progressive stance in tribal law cases, and the failure of the media to properly cover Native American issues.

Mentioned in this episode:

This Land Podcast

McGirt v. Oklahoma (2020)

Oklahoma v. Castro-Huerta (2022)

Brackeen v. Haaland (current)

"'Complete, dysfunctional chaos': Oklahoma reels after Supreme Court ruling on Indian tribes" (The Washington Post)

Further reading:

"Where Is Oklahoma Getting Its Numbers From in Its Supreme Court Case?" (The Atlantic)

"Texas, Big Oil Lawyers Target Native Children in a Bid to End Tribal Sovereignty" (Lakota People's Law Project)

Our right to a safe climate with Julia Olson Dec 29, 2022

In the latest episode of the High School SCOTUS Podcast, Elise and Hannah sat down with Julia Olson, founder and executive director of Our Children's Trust, a non-profit, public interest law firm that provides legal services to youth in an effort to secure their legal rights to a safe climate. We discuss Julia's passion for law and environmentalism, her realization that she could use her legal ability to fight the climate crisis and protect the next generation, her monumental litigation in Juliana v. United States, and her advice to young people who are desperate for change. Julia does ground-breaking work every single day, charting unmarked territory as she works to protect the fundamental rights of youth.

Mentioned in this episode:

Julianav. United States

West Virginia v. EPA (2022)

Alec L. v. McCarthy (2014)

Further reading:

Akin Gump: "'Major Questions?' Supreme Court Decision in Climate Case Sends Ripples Across the Regulatory Landscape"

Cornell Legal Information Institute: "Standing"

Scientific American: "First 'Kids' Climate Trial Will Be Heard in Montana"

Forbes: "Youth climate plaintiffs cite novel precedent: SCOTUS's landmark abortion ruling"

A critique of affirmative action with Richard Sander Dec 18, 2022

In the fifth episode of the affirmative action series, Elise and Hannah spoke with Professor Richard Sander of the University of California, Los Angeles School of Law about his perspective on the detrimental effects of racial preferences in higher education. They also discussed the importance of considering and evaluating empirical evidence related to affirmative action, and what he noticed at the Supreme Court's oral arguments on Oct. 31. Professor Sander has written extensively on the issue of race conscious policies, especially in the University of California higher education system, and began his career studying housing segregation.

We hope this conversation will shed light on arguments in opposition to affirmative action and foster substantive debate and discussion on such a contentious topic.

Mentioned in this episode:

Fisher v. University of Texas (2013)

Fisher v. University of Texas at Austin (2016)

California Proposition 209, Affirmative Action Initiative (1996)

Further reading:

The Harvard Crimson: "Harvard's Donor and Legacy Preferences Come Under Fire at Supreme Court Oral Arguments"

Inside Higher Ed: "U of California gets more diverse without SATs"

Ed Source: "Students at California's top-tier universities don't reflect state's racial and ethnic diversity, says Urban Institute study"

School Choice After Brown with Lisa Stulberg Nov 21, 2022

In the fourth episode of their affirmative action series, Elise and Hannah sit down with Professor Lisa Stulberg, who teaches the sociology of education at New York University. Their wide-ranging conversation included discussion of the charter school debate, school choice and desegregation in K-12, and America's misconception that merit is neutral. They also found time to talk about how our society inflates the impact of race-conscious policies, and Professor Stulberg's perspective on why diversity is so crucial in higher education. Professor Stulberg is an expert in the field, and this episode is really worth a listen.

Mentioned in this episode:

Regents of the University of California v. Bakke (1978)

Brown v. Board of Education of Topeka (1) (1954)

Brown v. Board of Education of Topeka (2) (1954)

California Proposition 209 (1996)

Grutter v. Bollinger (2003)

The Big Test: The Secret of the American Meritocracyby Nicholas Lehman

Further reading:

Harvard Ed. Magazine: "The Battle Over Charter Schools"

The Atlantic:"The College-Admissions Merit Myth"

Reframing Affirmative Action with Richard Ford Nov 15, 2022

In the third episode of the affirmative action series, Elise talks with Professor Richard Ford about reframing affirmative action and considering how social and cultural perceptions of race-conscious policies have overstated their ramifications. They also discuss Professor Ford's time as a high school journalist, his experience as a housing policy consultant, and his predictions for what will come after the Supreme Court's rulings in this year's affirmative action cases.

Mentioned in this episode:

Regents of the University of California v. Bakke (1978)

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

Oral Argument in Students for Fair Admissions v. University of North Carolina

Oral Argument in Students for Fair Admissions v. President and Fellows of Harvard College

Further reading:

The University of Chicago Law Review Online: "Affirmative-Action Jurisprudence Reflects American Racial Animosity but Is Also Unhappy in Its Own Special Way"

The Chronicle of Higher Education: "How Affirmative Action Was Derailed By Diversity"

Vox: "The Supreme Court discovers that ending affirmative action is hard"

The New Yorker: "The Inherent Contradictions in the Affirmative-Action Debate"

Testing the Diversity Rationale with Jonathan Masur Oct 31, 2022

In the second episode of their series on affirmative action, Elise and Hannah sit down with Professor Jonathan Masur of the University of Chicago Law School to discuss his study "Assessing Affirmative Action's Diversity Rationale," written with Professors Justin Driver, Kyle Rozema, and Adam Chilton. The study analyzed how citations to law review journals changed in the years after implementing a diversity policy as a microcosm to empirically measure the impact of diversity in higher education. Listen to the episode to hear more about their findings and the study's relevance to the cultural and social debate around affirmative action.

Mentioned in this episode:

"Assessing Affirmative Action's Diversity Rationale"

DeFungis v. Odegaard (1974)

Regents of the University of California v. Bakke (1978)

Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

Further reading:

The New York Times: "As Harvard Case Looms at Supreme Court, Study Tests Value of Diversity"

The Atlantic: "Why Sandra Day O'Connor Saved Affirmative Action"

NPR: "Two Justices Debate The Doctrine of Colorblindness"

Affirmative Action Ep. 1: An Introduction Oct 17, 2022

This term, the Supreme Court will decide two cases concerning the future of affirmative action: Students for Fair Admission v. University of North Carolina and Students for Fair Admission v. President and Fellows of Harvard College.

Over the next few months, Elise and Hannah will be speaking with legal scholars and education experts from across the country about affirmative action. Affirmative action and its interaction with the Supreme Court is a messy, tangled, and complicated topic with unique relevance to students and the education system. That also makes it the ideal subject for this podcast.

Future guests will walk you through the origins of race-conscious admissions, its cultural and social significance, the diversity rationale, school choice, and anything and everything else you could want to know about affirmative action.

Today, Elise and Hannah offer a brief introduction to affirmative action, discussing the who, what, when, where, and why of race-conscious admissions, and breaking down the four major cases the Supreme Court has heard about affirmative action: Regents of the University of California v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. University of Texas.

Mentioned in this episode:

Further reading:

The New York Times: "Affirmative Action Was Banned at Two Top Colleges. They Say They Need it." (Stephanie Saul)
USA Today: "Supreme Court's affirmative action cases could affect hiring, employment" (John Fritze)
The Philadelphia Inquirer: "The Supreme Court could drop 'wrecking ball' on another legal precedent" (Devontae Torriente and Ty Parks)

Term in Review: Education and the Court with Caitlin Millat Aug 08, 2022

In the tenth episode of the High School SCOTUS Podcast, Elise and Hannah are joined by Caitlin Millat to break down the cumulative impact of the Court's recent opinions on students, schools, and education. Caitlin is a Climenko Fellow and Lecturer in Law at Harvard Law School and is an expert on public education law and policy. In fact, she was once a teacher and academic dean at an elementary school in Brooklyn. Not only did we discuss the practical implications of this term's rulings with Caitlin, but she also gave input where the Court's jurisprudence could go next concerning decisions that impact students and their education. Tune in for more!

Mentioned in this episode:

Dobbs v. Jackson Women's Health

New York State Rifle and Pistol Association v. Bruen

Kennedy v. Bremerton School District

Carson v. Makin

Students for Fair Admissions v. President and Fellows of Harvard College; Students for Fair Admissions v. University of North Carolina

The New York Times: "Elite Colleges' Quiet Fight to Favor Alumni Children"

Further reading:

Education Week: "Practical Steps for Educators in a 'Post-Roe' World"

NPR: "Alabama is using the case that ended Roe to argue it can ban gender-affirming care"

Bloomberg Law: "Supreme Court again nods to history, tradition in religion case"

The Second Amendment and NYSRPA v. Bruen with Joseph Blocher Jul 31, 2022

In the ninth episode of the podcast, Elise and Hannah talk about the Court's recent decision in New York State Rifle and Pistol Association (NYSRPA) v. Bruen, a ruling that struck down New York's requirement that those who want to carry a gun in public must prove a "special need" to do so. To dig deep into the legal and practical significance of the case, Elise and Hannah are joined by Professor Joseph Blocher of Duke University School of Law. Professor Blocher specializes in research on the First and Second Amendments and co-directs the Center for Firearms Law at Duke. In this conversation, Professor Blocher walks Elise and Hannah through NYSRPA, discussing flaws of a "text, history, and tradition" analysis, the varying regulations that exist for carrying a gun in public, and how the Court's ruling will impact legislative policy intended to curb gun violence and mass shootings.

Mentioned in this episode:

NYSRPA v. Bruen

Heller v. District of Columbia

Gun Safety Reform Bill

Further reading:

Duke Center for Firearms Law: Amy Coney Barrett on Guns

NY Times: N.Y. Democrats to Pass New Gun Laws in Response to Supreme Court Ruling

The New Yorker: The Historical Cherry-Picking at the Heart of the Supreme Court's Gun Rights Expansion

Term in Review: Religion at the Court with Sarah Barringer Gordon Jul 11, 2022

In this episode, Elise and Hannah are joined by Professor Sarah Barringer Gordon of the University of Pennsylvania Law School to break down the Supreme Court's recent opinions in two major cases about the intersection of religion and schools: Carson v. Makin, where the Court ruled that Maine could not restrict its tuition assistance vouchers to secular schools, and Kennedy v. Bremerton, in which the justices allowed a football coach to pray publicly on the 50-yard line of the football field. Hannah and Elise begin with a brief primer on the cases, before handing the mic to Professor Gordon to discuss the tangled history behind the two religious conflicts and their implications for religious jurisprudence.

Mentioned in this episode:

Carson v. Makin(2022)
Kennedy v. Bremerton School District(2022)
Zelman v. Simmons-Harris (2002)
Locke v. Davey(2004)
Trinity Lutheran Church of Columbia v. Comer(2017)
Espinoza v. Montana Dept. of Revenue(2020)
The Lemon Test
Fulton v. Philadelphia(2021)

Further Reading:

PennToday: Q&A/Sarah Barringer Gordon
Constitution Center: The history of legal challenges to the Pledge of Allegiance
ACLU: The Supreme Court Benches the Separation of Church and State

Advocating for Your Rights with Mary Beth Tinker Jul 04, 2022

On a special episode of the High School SCOTUS Podcast, Mary Beth Tinker joins Elise and Hannah to discuss wearing a black armband to school in protest of the Vietnam War, helping to establish a right to free speech in school with the landmark Tinker v. Des Moines, and the value of teaching students that their views, values, and voices matter. Mary Beth Tinker was a joy to interview, and we hope you enjoy the episode as much as we enjoyed the conversation.

Mentioned in this episode:

Read more:

Religious Liberty at School with Heather Weaver Jun 05, 2022

In Episode 6 of the High School SCOTUS Podcast, Elise is joined by Heather Weaver, a senior staff attorney at the ACLU Program on Freedom of Religion and Belief, to dive further into how religious liberty evolves behind the schoolhouse gate, and how schools can prevent the establishment of religion without infringing on religious freedoms. Elise prefaces the discussion with a lesson on Wisconsin v. Yoder and Board of Education Westside Community Schools v. Mergens, two cases concerning whether religious activities at schools violated the Establishment Clause.

Mentioned in this episode:

Wisconsin v. Yoder

Board of Education Westside Community Schools v. Mergens

Employment Division v. Smith

The Supreme Court Must Protect Students From School-Sponsored Prayer (ACLU)

Prayer at School with Ira C. Lupu Apr 09, 2022

Elise and Hannah are joined by Professor Ira C. Lupu of George Washington School of Law for the fifth episode of the High School SCOTUS Podcast. With the help of Professor Lupu, we tackle the religious clauses of the First Amendment — the right to free exercise and the establishment clause — and explore how those interests clash in the schoolhouse. Specifically, we use the case study of prayer at school to understand how courts ensure the private right to pray while keeping separate religion and the government-run entity of a public school.

Cases mentioned:

Engel v. Vitale

Lee v. Weisman

Santa Fe Independent School District v. Doe

Kennedy v. Bremerton School District(upcoming)

Further reading:

High School SCOTUS: Kennedy v. Bremerton School District: football, prayer, and free speech at school

High School SCOTUS: Engel v. Vitale

Education Week: Supreme Court to Hear Case of Coach Who Prayed After Games in Defiance of School District

Censoring school libraries with April Dawkins and Emerson Sykes Mar 14, 2022

In Episode 4 of the High School SCOTUS Podcast, Hannah and Elise speak with two guests, April Dawkins of the University of North Carolina, Greensboro and Emerson Sykes of the ACLU’s Speech and Privacy project, about freedom to access information in schools. We focus heavily on censorship and removing books from school libraries, beginning with a preview of Island Trees School District v. Pico before taking a deep dive into the current legal and political debate over books in our school libraries. Listen up! This is an important one.

Mentioned in this episode:

Island School District v. Pico

González v. Douglas

Counts v. Cedarville School District

American Civil Liberties Union of Florida v. Miami Dade County School Board

ACLU of Missouri Sues Wentzville School District to Stop Banning Books

More reading:

NYT: What Students are Saying About Banning Books From Schools

Vox: Why Book Banning is Back

Bloomberg Law: Laws Aimed at Critical Race Theory May Face Legal Challenges

The Right Not To Speak Feb 22, 2022

In the third episode of the High School SCOTUS podcast, Elise and Hannah discuss when students have the right to opt out of school-led speech. They review two World War II-era cases: Minersville School District v. Gobitis and West Virginia State Board of Education v. Barnette. Both Gobitis and Barnette, heard only three years apart, considered whether schools could require that students participate in the Pledge of Allegiance. Gobitis said yes; Barnette said no. Listen to find out more!

Mentioned in this episode:

Strict Scrutiny: the highest standard of review, requiring states to prove that their laws further a compelling government interest and are narrowly-tailored to that interest.

Minersville School District v. Gobitis

West Virginia Board of Education v. Barnette

Recommended reading:

Not Such a Fixed Star After All: West Virginia State Board of Education v. Barnette, and the Changing Meaning of the First Amendment Right Not To Speak (Genevieve Lakier, Chicago Unbound)

Reconsidering Gobitis: An Exercise in Presidential Leadership (Robert L. Tsai, Washington University Law Review)

The history of legal challenges to the Pledge of Allegiance (Scott Bomboy, National Constitution Center)

Student Speech Rights with Catherine J. Ross Feb 04, 2022

In the second episode of the High School SCOTUS podcast, Elise and Hannah tackle student speech. What can students voluntarily say, and when do schools have the authority to restrict or discipline speech? What court cases helped to establish the boundaries of these rights?

Our guest was Professor Catherine J. Ross of George Washington University Law School, the author of Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights. Professor Ross gave us insight into the limitations of Tinker, the policing of off-campus speech, and why schools are the “nurseries of democracy.”

Mentioned in this episode:

Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights

Tinker v. Des Moines

Bethel v. Fraser

Hazelwood School District v. Kuhlmeier

Morse v. Frederick

Mahanoy v. BL

Further reading and listening:

Samuel Kohl writes about Mahanoy v. BL for High School SCOTUS

Anna Salvatore breaks down Hazelwood School District v. Kuhlmeier for High School SCOTUS

Civic Education and the Constitution with Jeffrey Rosen Jan 21, 2022

In the very first episode of the High School SCOTUS podcast, Elise Spenner and Hannah Saraf sit down with Jeffrey Rosen for a primer on the value of civic education, the importance of teaching students about the Supreme Court, and the path to engaging teenagers in discussions about their rights.

Mentioned in this episode:

Further reading:

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