Faculty Scholarship Digest

March 2009

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Ruth Colker, Reflections on Race: The Limits of Formal Equality, 69 OHIO ST. L.J. 1089 (2008).

In Colker’s recently published book, When is Separate Unequal: A Disability Perspective, she provided a theoretical framework for her foundational and extensive work in disability law, employing an anti-subordination theory, developed from the race context, to explain when identical treatment was and was not appropriate in the disability context. Her disability work draws heavily in that model on empirical studies that demonstrate what arrangements lead to positive outcomes for the disabled and what arrangements do not. In this article, Colker returns to issues of race, applying her adapted methodology for disability issues to the school integration issue the Supreme Court recently faced in Parents Involved in Community Schools v. Seattle School District No. 1.

The article tracks the facts of the use of race by the two school systems and examines the empirical literature regarding “effective integration programs that are likely to lead to positive educational outcomes for minority children.” The article concludes that, far from not being narrow enough, as the Court’s formal equality, “color-blind” analysis determined, the race-conscious plans adopted by the school systems were in fact too narrow: that only earlier (i.e., kindergarten) and more extensive integration can effectively improve minority educational performance. Thus, Colker argues, “[f]rom an anti-subordination perspective, the courts have the racial equality model exactly backward.”

Daniel P. Tokaji, Voter Registration and Election Reform, 17 WM. & MARY BILL OF RIGHTS L.J. 453 (2008).

This article provides a comprehensive discussion of voter registration, a subject that has received little academic attention relative both to such issues as redistricting and campaign finance and to the scope of registration litigation. Voter registration dates to the early 19th century, but became widespread after the Civil War and, by World War I, most states had substantial voter registration laws. Voter registration was designed to make sure that only eligible voters voted and that they voted only once, and such rules were needed in some areas to prevent abuse. At the same time, voter registration rules were also used from the beginning (all over the country and by both political parties) to disenfranchise eligible voters.

Although voter registration is overwhelmingly a matter of state law, three federal statutes have played (and still play) a significant role in voter registration: the Voting Rights Act (whose significant provisions are before the Supreme Court this term), the National Voter Registration Act (the so-called “Motor Voter” law, though it does much more), and the Help America Vote Act (enacted following the 2000 election). Tokaji covers the registration significance of each of these statutes, analyzing their strengths and weaknesses.

Notwithstanding the developments the article traces, voter registration rules continue to restrict voting in problematic ways, and the article details some of the statistics and the reasons, carrying the story of registration litigation up to 2008. The article concludes with an agenda for reform, which starts from the premise that while “the existing election administration system is quite effective in promoting integrity, there is considerable room for improvement when it comes to access.”

Drawing on the “states as laboratories” tradition, Tokaji analyzes a series of reforms that states could experiment with to increase voter participation. The more modest proposals — registration portability, automatic voter registration, and election day registration — have already been used in some states, and the article documents their impact in increased registration and other effects, such as decreased reliance on provisional ballots. The article also discusses more dramatic possible reforms, such as federalization of registration, universal registration (where the government takes an affirmative role in ensuring registration, a common approach in other industrialized democracies), and compulsory registration and voting (which is also used in some other countries).

Daniel P. Tokaji, Voter Registration and Institutional Reform: Lessons from a Historic Election, 3 HARV. L. & POL’Y REV. (Online) (Jan. 22, 2009).

This article adds to Tokaji’s previous scholarship on voter registration, including the piece discussed above, from a post-2008 election perspective. Voter registration was the dominant litigation issue of the 2008 election cycle, and the article details the key elements of that litigation (in which Tokaji participated). The article highlights the role of local implementation of voter registration rules and the absence of a private right of action under federal law as key source of continued problems and uncertainty, notwithstanding the enactment of the Help America Vote Act of 2002.

The article then assumes the ambitious tasks of mapping a future direction for voter registration reform. Tokaji suggests that instead of focusing on the longstanding tension between access and integrity that has dominated voter registration battles, reforms should instead turn to “confronting decentralization and partisanship in the administration of elections.” Along these lines, the article points to the Canadian model of universal, federal registration, which has produced a 93% registration rate among eligible voters (compared to less than 70% in the U.S.) and analyzes some of the advantages and difficulties posed by federalization.

Daniel P. Tokaji, Desegregation, Discrimination and Democracy: Parents Involved’s Disregard for Process, 69 Ohio St. L. J. 847 (2008).

This essay, part of a symposium of the Ohio State Law Journal, examines the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District, No. 1, which struck down local school desegregation plans, from a perspective of democratic governance and the federal courts’ role in sustaining or constraining such governance. The essay argues from both normative and descriptive perspectives that desegregation cases from Brown forward can and should be partly understood on democratic process grounds, along the lines made famous by John Hart Ely in Democracy and Distrust. Tokaji contends “that the exclusion of African-Americans from electoral politics was a critical component of the justification for the line of desegregation cases” and that reduction of that political exclusion partly explained the subsequent retreat of federal courts from superintendence of local school boards. The essay takes the Parents Involved Court to task for making “no serious attempt to ground its discrimination doctrine in democratic theory.” The article also tracks the “anti-discrimination” cases from Bakke forward, finding in Parents’ Involved the ultimate (subsilentio) rejection of an anti-subordination understanding of discrimination for an anti-differentiation understanding: “differentiation = discrimination = (presumptive) constitutional violation.”

While conceding that this understanding is supported by affirmative action precedents, the essay challenges the Court to consider “why . . . competing visions of racial equality are better resolved by the federal courts than by democratically elected bodies.” The final part of the essay, again carefully and expressly interweaving normative and descriptive arguments, sketches a path towards addressing such questions, suggesting “that questions about the fairness of the democratic process ought to be central in determining how closely to scrutinize the products of that process.” Pessimistic about the Court engaging in such analysis in the immediate future, the essay concludes with some legislative suggestions for promoting local school integration.


E. Gordon Gee


This is the latest edition of a venerable casebook in the field. The third edition was published in 1995, so naturally this edition involves substantial rewriting and a great deal of new material. Indeed, reviewing the chapter titles, the reader is reminded of how many distinct issues and different areas of the law are implicated in education, and how these issues continue to evolve, make headlines, and remain prominent in litigation and legislation. For example: affirmative action, searches of students, student rights to political expression, school segregation, educating students with disabilities, financing of public education, and issues relating to religion and public education. Gee and Daniel delve into the developments in all these fields as they bring the book fully up to date.