States are favoring school choice at a steep cost to public education


Teacher strikes are generating a healthy focus on how far public education funding has fallen over the past decade. The full explanation, however, goes beyond basic funding cuts. It involves systematic advantages in terms of funding, students and teachers for charter schools and voucher programs as compared to traditional public schools. Increasing public teacher salaries may end the current protests, but speaking as an expert in education law and policy, I believe it won’t touch the new normal in which public education is no longer many states’ first priority.

My forthcoming research shows that, from funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools. These better deals have fueled enormous growth in charter schools and voucher programs that is now nearly impossible to unwind.

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Black’s article published in Stanford Law Review

Prof. Derek Black’s article, “The Constitutional Compromise to Guarantee Education,” has been published in Volume 70 of the Stanford Law Review.

Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity. 

New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory. 

This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education. 

Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity.

All for Civil Rights: Exploring the History of South Carolina’s African-American Lawyers

Wednesday, March 28, W. Lewis Burke, professor emeritus at the School of Law, draws from his book, “All for Civil Rights,” to deliver a talk on the history of South Carolina’s African-American lawyers and their legal education. The lecture begins at 5 p.m. at the School of Law and will be followed by a reception and book signing. The event is free and open to the public, but registration is encouraged:

Economic Impact of Immigration by State


Immigration, and how to handle it, continues to be a contentious topic in the United States in 2018. Recent issues include court battles over the Trump administration’s travel ban on certain countries, along with the possible upcoming end of the Deferred Action for Childhood Arrivals (DACA) program. But political differences aside, there’s no question that immigration as a whole affects the economy.

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The constitutional right to education is long overdue


Public school funding has shrunk over the past decade. School discipline rates reached historic highs. Large achievement gaps persist. And the overall performance of our nation’s students falls well below our international peers.

These bleak numbers beg the question: Don’t students have a constitutional right to something better? Many Americans assume that federal law protects the right to education. Why wouldn’t it? All 50 state constitutions provide for education. The same is true in 170 other countries. Yet, the word “education” does not appear in the United States Constitution, and federal courts have rejected the idea that education is important enough that it should be protected anyway.

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Bockman named interim Public Service Commission commissioner

Professor Robert Bockman is the faculty adviser for the Moot Court Bar.

Robert Bockman, Senior Legal Writing Instructor at the University of South Carolina School of Law and a former assistant Attorney General, has been appointed an interim commissioner of the South Carolina Public Service Commission by Gov. Henry McMaster. Bockman replaces Nikiya Hall, who resigned from her position as District 6 commissioner on Oct. 31.


Prof. Marcia Zug receives Fulbright Scholarship for work in Australia

Prof. Marcia Zug has worked at the University of South Carolina School of Law since 2007.

On a bulletin board next to Professor Marcia Zug’s desk hangs a necklace made of turkey spurs and beads. The chief of the Beaver Creek Indians, a local tribe, gave it to her as a thank you for the work she did to help an American Indian father retain custody of his daughter. She calls it her most prized possession, a constant reminder that her efforts as an Indian law scholar are not just about the research she conducts or the articles she writes, but the people she helps.

That desire to help others is what drove Zug to apply for—and receive—a Fulbright Scholarship, the United States’ flagship academic exchange effort. Her project, Comparative Perspectives on the Protection of Indigenous Children: What America and Australia Can Learn from Each Other, is one of the first to compare America’s Indian Child Welfare Act (ICWA) to Australia’s Aboriginal Child Placement Principle (ACPP). She will complete her research during four months abroad at the University of Canberra in Australia.

“Australia and the US have a very similar history regarding the treatment of indigenous families,” says Zug. “As a professor of federal Indian law and family law I was aware of this history, but unfamiliar with the ways the Australian legal system has addressed it. By moving to Australia, I’ll be able to conduct this comparative research.”

Over the years, the University of South Carolina School of Law professor’s work has focused on ways to increase and solidify the protections afforded Indian families. At the School of Law, she teaches Family Law, Advanced Family Law, and American Indian law, as well as an Immigration Skills Workshop. Much of her research has been on the ways U.S. law and policy affect Native American families, how existing legal protections could be made stronger and how new protections could be implemented. Now with a closer look at Australia’s process, Zug hopes to contrast the two.

“Both countries’ procedures have their flaws, but it is not clear that they are the same flaws,” says Zug.

Her research will focus on three aspects of both the ICWA and ACPP and their legal frame work. First, she will study the different responses to the classification of indigenous children as eligible for legal protections. She will also examine the different ways Americans and Australian advocates respond to the claim that ICWA and the ACPP sacrifice the best interests of native children. Lastly, she will note the effectiveness in government apologies; comparing Australia’s public remorse in the historic treatment of Aboriginals versus the lack of recognition America gives to its lengthy mistreatment of natives.

Zug has already connected with experts on access to justice, family law, domestic women, and indigenous law in Australia, and says working with them will be key in finding the same depth of knowledge of the issues surrounding Aboriginals, as she has already obtained about Native Americans.

“I am really looking forward to working with the law faculty at the University of Canberra. The scholars there are doing amazing work on indigenous rights and it’ll be really interesting to work alongside them. I plan to have a draft completed by the time I leave Australia and an article submitted for publication by the end of the 2018,” says Zug.

She is also looking forward to forming close relationships with other researchers in her field, as well as universities around Australia. Zug regularly give lectures on her current work to both faculty and students in the United States, and hopes to give similar talks at the University of Canberra. She has also already been in contact with members of the Indigenous Law Center at the University of New South Wales and with faculty members at the University of Sydney, hoping to expand her reach. She credits South Carolina Law for much of her ability to become an expert herself in this field, supporting her ambitions when it comes to diversity in law research.

“The University of South Carolina School of Law is strongly committed to diversity in both its faculty and its scholarship. Receiving a Fulbright award to study indigenous families has further demonstrated this commitment to both diversity and the protection of minority rights.”

The Fulbright Award means a six-month adventure for her family, moving across the world in pursuit of new discoveries. Zug says she hopes that this comparative research will provide her with new ideas for addressing some of the problems that continue to face native families in the United States, and expects this comparative research will influence much of her future Indian law scholarship, as well as the classes she teaches at the School of Law.