By Alyssa Greenstein
As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Education Law to discuss the state of the field and upcoming section initiatives.
The AALS Section on Education Law promotes the communication of ideas, interests, and activities among members and provides discussion, information, and recommendations in regard to the interaction of law and education.
Chair: Erin Archerd, University of Detroit Mercy School of Law
Chair-Elect: Natalie M. Gomez-Velez, City University of New York School of Law
Erin Archerd: I believe Eloise Pasachoff (Georgetown Law) reached out to me. She was in Section leadership at the time. I moderated a panel she was part of at a conference and she encouraged me to come to the next Education Law panel at the AALS Annual Meeting. My involvement grew from there.
Natalie M. Gomez-Velez: I was attracted to this Section when I first I joined AALS. I was drawn to education law because I did significant volunteer work in education governance in New York prior to becoming a law professor. I didn’t have colleagues who were doing that kind of work at my law school at the time, so I saw this as a wonderful opportunity to connect with other scholars and teachers who were focusing on education law. I came into the Section first as a member. Then I participated in an Annual Meeting program, which led me to join the executive committee.
EA: We have a chair, which is my current position, and Natalie is our chair-elect. We have a secretary, Miranda Johnson (Loyola University Chicago Law), and a treasurer, Ben Trachtenberg (University of Missouri Law). We had a leadership gap that we filled this year, so all of us advanced up the leadership ladder a year ahead of schedule. We also have a robust group of individuals from throughout the country serving on our executive committee. We are especially indebted to our outgoing Chair, Maryam Ahranjani, who, in the midst of a global pandemic, organized an incredible panel focused on the 40th Anniversary of Plyler v. Doe at the 2021 AALS Annual Meeting.
EA: Education law sounds as if it is really specific, but it is actually very broad, and people tend to have very different areas of focus. There are some members that focus on constitutional law, but there are also many members who are interested in empirical research around various interventions in the education context. There is also significant overlap with administrative law. Education law is one of those fields that has many different facets.
The Section tends to alternate our focus at each AALS Annual Meeting from a focus on K-12 education to one on higher education. Our members’ research covers a wide range of topics. I came into the Section because I was interested in the dispute resolution mechanisms within the Individuals with Disabilities Education Act, so I came in from an alternative dispute resolution and disability law space. It is surprisingly hard to find people who identify themselves as a pure education law scholars because this area intersects with so many other areas of law.
NGV: Some of our members engage in empirical research about education finance. I am interested in governance, given my experience in governance roles and working on educational policy with the New York City Panel for Educational Policy and the New York State Board of Regents. Much of my scholarship is on state and local governance issues. I also teach federal administrative law. I’ve been drawn to several education law/administrative law issues, including Title IX issues and the intersection of DACA with education access. My own scholarship has focused primarily on K-12 education governance. Other members’ work examines higher education.
EA: We are going to focus on administrative law in higher education and its impact on education law. The panel will most likely be titled “Administrative Law in Higher Education.” Section leadership is leaning toward this topic because, as Natalie mentioned, there are a lot of areas of impact in the space of higher education. For example, there have been some colleagues talking about Title IX and how universities can comply with the expectations of the federal government around reporting.
Over the last few years, there has been a lot in the news about sexual harassment investigations happening on campus, and there was some impact there in terms of how that’s being enforced against campuses. There are also impacts in terms of how various constituents on campus are viewed and how their compensation structures need to work, such as for graduate teaching assistants and student athletes. Visa enforcement was also a big issue last summer. It is a very broad topic at this point, and we chose it in part because we expect that there will be changes at the federal administrative level in terms of how this administration interacts with higher education institutions.
There are lots of areas that we’re expecting to see movement in over the next few months, and we’re hoping to capture that at our session at the 2022 AALS Annual Meeting.
NGV: How higher education institutions will manage DACA (Deferred Action for Childhood Arrivals) and other non-citizen student and employee statuses given current changes in federal rules and priorities is an active area involving administrative law and higher education. Another area involves the Biden administration’s executive orders regarding diversity initiatives, antiracism efforts, etc. in higher education. There is a lot of current law and policy change at the intersection of administrative law and education law impacting institutions of higher education across the country.
EA: We are thinking about reaching out to other Sections to work with them on pedagogy in higher education. We have all experienced a dramatic shift in the last year over around how we’ve been teaching our law students, so we would like to try to organize a discussion about this, perhaps at the Annual Meeting. We want to discuss what changes are arising in terms of higher education practice and policies around such topics as recording of classes, for instance. We want to talk about how we as a Section and as AALS more broadly, should be thinking about changes and policymaking around those topics.
Like many Sections, we reach out to our membership to get updates on the projects that they’re working on to feature in the newsletter. We also will promote upcoming events in the newsletter. Many schools are hosting online symposia, so if these events discuss topics with educational implications, we can help promote those to our membership. We, as an executive committee, talk about topics we would like to bring to the attention of our members. For instance, at our last meeting we were talking about the rise in conversations around campus speech.
EA: Reach out to me via email, and I will certainly get you added to the Section member list. I would encourage people to come to the AALS Annual Meeting because it is a great way to meet people in the field. We are a very welcoming Section where people are supportive of one another and really interested in each other’s scholarship. I would especially encourage those interested in the Education Law Section to come to our business meeting in 2022 and introduce themselves there.
I would encourage anybody who is at all interested in joining the Section to let us know. You do not have to teach education law, higher education, special education, or any of those specialized law school courses to be a member of our Section.
NGV: Another avenue for involvement is through other AALS Sections because the Education Law Section’s work often overlaps with others. We often do joint programs at the Annual Meeting, so that’s another good way to get involved.
EA: Some of the concerns that we have in the education law area differ greatly between the K-12 space and the higher education space. In the K-12 space, there are a lot of concerns around children being left behind. For those who have still been enrolled in school, there are concerns about the quality of education they are receiving. People have differing opinions about how we should be tracking student progress. Across the board there is concern that there will be some sort of educational loss, which will be hard to measure and hard to correct in the years ahead. I think there will be a lot of research happening in this area. For example, here in Michigan we have an elementary school third grade reading statute that says if a student is not reading at a certain level, they may need to be held back and/or receive additional educational interventions like supplementary tutoring. The question is being raised about how students who have missed out on over a year of school due to the pandemic will hold up against laws like this.
In the higher education space, I think that the largest change that we are going to see is in terms of teaching methodologies. There are a lot of questions that schools are going to have around how they should be structuring their education going forward now that so many teachers and students are being exposed to these online paradigms.
NGV:I recently published an article that examines public education equity during COVID-19 in New York. It details several of the ways in which the pandemic has exposed inequities in education in New York City. These inequities include the digital divide, housing quality and access, and home environment. It notes how students’ social and emotional health and the relationships between teachers and students are critical and were significantly impaired during remote instruction. It examines the impacts of remote learning for English language learner students and students with disabilities. It places these inequities in the context of broader health, education, and other inequities and examines the interplay between public health emergency powers and education governance, and the implications of governance choices in addressing inequity. The pandemic highlighted pre-existing inequities in education, how they were exacerbated, and what we might learn from the pandemic to better address the range of issues that have emerged — from technology infrastructure, to home environment, to vaccine access, and the ability to mandate vaccines. Among the most significant emerging issues, as Erin mentioned, are inequities surrounding effective education access, and the loss of time during the pandemic.
Disparities in remote learning quality and access, and in the availability of in-person learning during the pandemic, often track issues of race and class. Some students faced significant learning challenges within their home environment, such as those with family members who are essential workers or family members who passed away. How do governments and educational institutions make up for the inequities, the loss of learning time, learning spaces, and the interruptions in key relationships and supports for vulnerable students, contributing to widening opportunity gaps?
NGV: Several Section members have done empirical research on educational inequities along the lines of race, ethnicity, and class. Our session at the 2021 Annual Meeting discussed Plyler v. Doe, a case about U.S. students’ right to K-12 education regardless of immigration status, that presented a vision of equity and belonging that unfortunately has been limited in subsequent rulings. I know that many of our members have done work on justice and equity issues in the K-12 space. Scholars, teachers, and administrators are engaging with many issues addressing antiracism in higher education. There is a renewed focus on the need to have informed education that highlights antiracism goals and forges a path toward meaningful, systemic equity.
EA: We have not written and published a specific antiracism statement as a Section, although, I know that many of us have issued such statements in an individual or collective capacity within our institutions. For instance, our faculty at Detroit Mercy Law has an explicit antiracism statement. Many of our members’ research addresses bias and addresses the disparate impacts of educational law policies. For example, one of the members of our council, Erik Girvan who teaches at Oregon Law, has done empirical research on the elimination of implicit bias, including doing specific interventions within schools and evaluating how those interventions work.
Miranda Johnson, who is our secretary this year, looks at exclusionary school discipline policies and practices, which have a racial element to them. I published an article a few years back looking at restorative practices as a way to reduce the school to prison pipeline, and many of our members do a lot of research about issues surrounding the school to prison pipeline. Kimberly Jenkins Robinson, who is also a member of our executive committee, has done a lot of work in this area. She recently published a book on a federal right to education. There are a number of different entry points where people within our Section, either at a local, state, or federal level, are trying to find ways to address longstanding disparities in our education system, based on things like race, but also based on things like English learner status and disability.
NGV: At my school, faculty engage with the curriculum committee to talk about some of the ways we can include issues of race, racial bias, and socioeconomics in our courses. I have recently done a presentation about administrative law and compositional structures in terms of techniques and strategies for uncovering those issues. Katherine Kovacs at Rutgers Law started a symposium with the Yale Journal on Regulation over the summer, inviting scholars to write about issues of racism in administrative law.
I have changed the way that I frame a case in administrative law over time. I like to look at the implications of the cases, even those concerning procedural issues, from a perspective that includes what the impacts are on a recent class and on people across the society.
EA: Education law is multidisciplinary, so what we’re seeing in education law is people who either have a JD and PhD work with someone to co-author a piece who has a background in empirical research. This way, they can bring in some of the theory that we like to work with in the legal education space, but also marry it with some of the practice and the empirical data from schools.
AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each section is focused on a different academic discipline, affinity group, or administrative area. For a full list of AALS sections and information on how to join, please visit aals.org/services/sections.
