Citizenship in this chapter means membership of a state. Nationhood means membership of a “nation”, which is a particular type of cultural and/or ethnic collective. I first set out the reasons that liberals and anti-liberals have given for making citizenship and nationhood coterminous. Second, I describe the major historical and sociological explanations that were advanced for the processes that helped create this overlap, the methods that states and other political agents have adopted to realize it, and the practical and moral obstacles that these agents have always faced. Third, I discuss the positions of contemporary liberals on the issue, including the position I believe to be appropriate. The discussion concludes that the ideal of full overlap between citizenry and nationhood should be rejected both constitutionally and certainly demographically. However, it endorses arrangements allowing for a limited identification of states’ citizenries with one or a few national groups.
This chapter analyzes the national citizenship regimes adopted by newly independent states and factors that influence the content of these regimes. The chapter examines how the goal of attaining state sovereignty, different visions of and debates over the boundaries of the national community in whose name the new state is constituted, perceived implications of citizenship rules for political and economic power of different groups, and external actors, including other states in the region and international organizations, inform the content of citizenship regimes in new states.
The struggle for universal suffrage has been a paradigmatic political struggle in the modern state, as people have striven to achieve full and equal citizenship. This chapter examines - from a conceptual, legal and historical perspective - the ‘selection’ of voters as one of the core hallmarks of citizenship in modern democracies. It explores the ways in which the ideas and practices of citizenship intersect with the right to vote, allowing us to probe the contribution of citizenship as a legal status underpinning the definition of the franchise to democratic self-government as a political ideal.
Joshua E. Weishart
This chapter clarifies the nature of right to education in the United States. It analyzes the constitutional text and judicial decisions from the past half-century to identify the right’s form, function, and scope. These interrelated, constitutive parts reveal (i) the duties and freedoms conferred by the right, (ii) the purpose and content of those educational entitlements, (iii) the conditions by which the right can be vindicated in courts, and (iv) the range of potential remedies.
Contested Meanings of Equality: The Unrealized Promise of the Antidiscrimination Principle and the Uncertain Future of a Right to Education
Rachel F. Moran
Many people take for granted that the antidiscrimination principle and an equality norm are one and the same. In fact, there are significant differences that should not be overlooked. Education law offers unique insights into the distinctions because school desegregation cases both concretized demands to be free of discrimination and cultivated aspirations to be equal. In the years since 1954, when the U.S. Supreme Court declared that racially separate schools are inherently unequal in Brown v. Board of Education, the antidiscrimination principle has evolved into a requirement that the government be colorblind; that is, public officials must refrain from all consideration of race in their decision-making. A colorblindness requirement can have perverse consequences for equality. Most notably, local school districts today cannot weigh race in making student assignments to promote voluntary integration. Faced with constraints like these, reformers have sought to capitalize on an antidiscrimination principle without sacrificing their goals for equality. For example, federal civil rights statutes designed to protect children with disabilities and English language learners mandate meaningful access to the curriculum as well as protection from discrimination. In school finance litigation, advocates have moved even further away from an antidiscrimination focus. They have demanded recognition of a right to education, an interest that acknowledges every child’s right to flourish. New strategies that push beyond the antidiscrimination principle to promote equal educational opportunity have not been uniformly successful, but they can deepen our understanding of a fair and inclusive educational system.
H. Timothy Lovelace Jr.
In 1976, Derrick Bell, a former lawyer for the NAACP Legal Defense and Educational Fund, wrote about the inability of modern civil rights litigation to advance real racial justice. His willingness to dissent from civil rights orthodoxy would radically reshape the study of race, law, and history. The result would lead to the creation of critical race theory. This chapter begins by examining the role of historical analysis in the development of critical race theory. It then explores how legal historians of the civil rights movement imported insights from critical race theory to develop three decades of movement scholarship. Next, it charts new scholarly directions for both critical race theorists and legal historians. The chapter concludes with reflections on how legal history and critical race theory have influenced contemporary struggles for racial justice.
Fiscal Compliance Rules for Federal Funding of Elementary and Secondary Education: Transparency, Reason-giving, and Agency Accountability
Nora Gordon and Eloise Pasachoff
Fiscal compliance rules—technical rules governing how states and school districts may use their federal money and how they must document that use—are pervasive throughout federal education law. The purpose of these rules is to hold state and local educational agencies accountable for their spending choices under federal law. Yet, as this chapter demonstrates, the multilayered bureaucratic system in which the rules are embedded actually works against the public accountability they were designed to promote. The chapter describes the institutional system of federal grants administration and how it oversees and enforces fiscal rules. After explaining the importance of these rules to state and local educational agencies, the chapter argues that the fiscal compliance rules would be more valuable in promoting accountability—and thereby would better serve students—if the system as a whole provided clearer and more accessible rules and required documented reason-giving under these rules in publicly available fora.
Joel P. Trachtman
A future of greater migration will put pressure on the exclusive territorial model of citizenship. In the deepest analytical sense, bundled citizenship is incoherent, and made more so by extraterritorial effects of national decision-making—by the effects on persons in other territories—and, as salient for this chapter, by the mobility of persons that makes them experience effects of governmental decisions in other territories. For most historic periods since the emergence of the modern state system and in most regional contexts this mobility of persons was not significant enough, and the role of the state in providing positive rights was not great enough, to necessitate an international regime for assigning states responsibility for positive rights, and assigning individuals duties to states. However, with greater demand for mobility, greater cooperation to divide up the components of citizenship may be desirable.
This chapter takes the phrase ‘legal history as political history’ as gesturing at two existing, perhaps by now classic debates. One is the question of political history’s meaning, or its differentiation from social or cultural history. The other is the relationship between law and politics, especially regarding the Critical Legal Studies view of that relationship. The chapter begins by briefly considering these preliminary questions. It then advances a suggestion about what to look for when trying to understand legal history as political history. It suggests that there is a body of legal history being written and published today, not generally considered as a group or in any way related, that would be considered profitably as political history. The common feature for this work is that it shows change over time in the way law functions.
This chapter examines what it means to be a citizen within liberal and republican political theories - liberalism as the dominant political philosophy of our time, and republicanism as bringing to the fore a new focus on citizenship. Evolving in different historical contexts, liberalism and republicanism represent alternative perspectives on the problem of politics; they share the value of freedom, but interpret and prioritise it differently vis a vis other values. This entails differences in their conceptions of citizenship, and in their potential responses to contemporary challenges of diversity (of gender, culture and religion) and of transnational interdependence.
The manner in which new citizens should be created is one of the most complex questions in political theory. The law of naturalization functions as a gatekeeper—it is designed to include the desirable people and exclude the undesirable ones. This chapter explores legal and theoretical aspects of naturalization. Part I addresses the ultimate goal of naturalization—what function does it serve?—by presenting three goals: contract, political test, and nation-building. Part II seeks to present three ways to assess the ethics of naturalization, drawing on conceptual and utilitarian grounds. Part III examines three trends in naturalization policy in the West—legalization, devaluation, and liberalization (followed by a restrictive turn). Naturalization has been internationalized in the direction of creating a right to citizenship; citizenship is becoming a “commodity” whose nature is increasingly influenced by economic considerations; and the process of liberalization in access to the status of citizenship is facing a cultural restrictive turn.
The chapter focuses on citizenship as membership in a political community. It starts from a critical discussion of the “democratic boundary problem” and argues that principles of democratic inclusion need to be differentiated for various stages of the democratic process and different types of polities. Section 2 focuses on conceptual analysis and argues that – as a form of membership – citizenship creates categorical distinctions but not necessarily impermeable, stable or bright boundaries. Section 3 examines the variety of democratic polities and identifies birthright, residence and multilevel derivation as the characteristic membership rules for independent states, for municipalities and for subnational or supranational regions. The last section discusses the mismatch between territorial and membership boundaries in the international state system as the main reason for the increasing complexity of citizenship relations in the current world. My conclusion is that normative inclusion principles need to be sensitive not only to the diversity of interests, beliefs and values in liberal society, but also to the pluralism of self-governing polities and of individuals’ relations to these.
Irwin P. Raij and Alexander Chester
This chapter discusses the development and financing for stadiums by the teams in the largest American professional sports leagues, including MLB, the NFL, the NBA, the NHL, and MLS, and the role of government in that process. With the exception of antitrust issues, there may be no aspect of American sports in which the government is as involved as the construction and financing of the stadiums in which the games are played. Stadium development, initially a private matter, entered the public interest because of the dramatic growth in construction costs coupled with the appearance of economic and societal benefits to a region that hosts a major league team. It will come as no surprise that venue projects are challenging and often controversial. This chapter analyzes how teams, leagues, and government entities negotiate for venue development projects, touching on the legal, practical, and political challenges that have emerged over the years.
Alexander C. Diener
Rather than following a linear narrative, this discussion of rescaling citizenship reveals varied modes socio-spatial organization and belonging that, at times, coincide with the dominant political units of historic eras and, at others, reject or transcend them. While varied ideals of belonging and civil responsibility may be more visible or articulated today, they have existed throughout history, and perpetually formed alternative scales of citizenship. Re-scaling citizenship has always been part of efforts to organize political space at an optimal scale for civil beneficence, rights, and responsibilities. Despite efforts to rigidly link concepts of membership to territory, contingencies of social process, technology, and shifting values make citizenship multivalent and polilocal. While affirming the continued allure of the territorial state, this chapter calls for consideration of increasing mobilities and communication technology, supra and sub-state political communities, as well as cross-border relationships and the daily practices of integration that pervade contemporary human existence.
Michael A. Rebell
Education in America today lacks a meaningful vision. The equal educational opportunity goal proclaimed by the U.S. Supreme Court in Brown v. Board of Education has been undermined by the failures in the decades since of the federal courts to implement school desegregation effectively and of Congress and the state legislatures to follow through on their stated commitments to ensure that all children can learn at high levels. This chapter argues that both equity and excellence can be achieved in American education if (1) preparation for capable citizenship, the original purpose of public education in America, can be revived in a manner that responds to twenty-first-century needs for both equity and excellence, and (2) the courts play a sustained, constructive role in bringing about these changes by enforcing relevant constitutional provisions that require schools to prepare students for capable citizenship. The first part of the chapter describes how for the past half century, schools have systematically failed to prepare students to be capable citizens, and the causes of this failure. It then provides a detailed analysis of how children can be prepared appropriately to function productively as civic participants. The second part explains why the promotion of educational equity and excellence of this sort cannot, however, be realized without the active involvement of the courts, both to validate the importance of education for civic preparation and to establish the necessary preconditions for adequate and equal funding and racial and cultural integration that are necessary for these reforms to succeed.
Erin E. Buzuvis
This chapter highlights the role of Title IX of the Education Amendments Act of 1972 and the U.S. Constitution’s Equal Protection Clause of the Fourteenth Amendment in transforming the gendered landscape of U.S. education. After first providing an overview of these two sources of law, the chapter examines the role they have played in challenging sex-based designations in admissions and in the classroom, in promoting equal opportunity and access to school-sponsored athletics, in challenging sexual harassment and other sexual misconduct, in reducing barriers to LGBT students, and in promoting equal opportunity for students who are pregnant. Sections addressing each one of these topics will also note limitations and shortcomings of the law’s approach to these issues, as there is still more work to do to fully realize sex equality in education. While the law has not cured all the problems of sex discrimination education, owing to limitations in its scope, as well as enforceability, it has proven to be a powerful source of societal norms and expectations, which themselves operate to motivate compliance and beyond.
Jeffrey W. Snyder and Sarah Reckhow
In recent decades, education governance has seen many important shifts that influence how education services are provided to students. This chapter introduces three of the most pronounced changes. First, the formal actors responsible for education have shifted from an environment most centered on local school boards to one where city, state, and federal politicians have more responsibility and influence over education. Second, due to policies enabling vouchers, charter schools, and cyber schools, public funding for education is now distributed to a wider array of school types beyond traditional brick-and-mortar public schools. Third, the role of outside private money from philanthropies has increased over time, and the organizational form favored by these donors may be changing in ways that limit the amount of transparency required of these funders. Cumulatively, these changes have eroded the traditionally insulated and localized character of education governance, making education more similar to other areas of U.S. policymaking.
Jon M. Garon
Social media has emerged as an essential communications format among players, teams, leagues, fans, and consumers. Social media has fewer control points than traditional broadcast or print media, so players are better able to engage directly with their fans. The new relationship between athletes and the public, however, may conflict with some of the current exclusive agreements between leagues and broadcasters. Moreover, this immediacy eliminates the ability of teams and leagues to manage player communications, and thus it imposes additional responsibility on the athlete in regard to unauthorized or undisclosed commercial endorsements and to avoid defamatory, racist, or other harmful communications.
This chapter provides the foundation overview on the history, evolution, and trends regarding the education of students with disabilities. Moving from an era of almost total exclusion (or at best separate education) that lasted until the 1970s to the evolution of a zero reject philosophy that all students with disabilities are entitled to public education has resulted in considerable time, effort, and resources devoted to this population. This is the only field of education law that has its own comprehensive, complex, and detailed set of statutory rights, remedies, and procedures. The current political trend related to school choice, in addition to reducing resources for public education generally, threatens the protections currently in place for this population of students. The chapter traces the history, provides an overview of the three key statutes, discusses the substantial level of judicial attention to these issues (including a large body of Supreme Court attention), frames the areas of unresolved attention, and highlights current issues and trends under the political forces that could turn back fifty years of progress.
Suzanne E. Eckes and Maria M. Lewis
Controversies over school policies that impact transgender students have garnered increased attention in recent years. For example, some transgender students have been prohibited from using the restroom that aligns with their gender identity, and others have not been addressed by their preferred names. Thus, in this chapter, we focus on cutting-edge issues that relate specifically to transgender students. In doing so we explore the legal landscape related to transgender student inclusion. We will begin with an overview of relevant research, followed by a presentation of the legal framework and finishing with a discussion of important legal issues, including topics such as access to facilities, privacy, pronouns and student records, athletics, and dress codes. As this chapter will demonstrate, unprecedented efforts in research have revealed alarming inequities experienced by transgender individuals. Concurrently, with some limitations or exceptions, there is a growing body of legal authority that has been successfully relied upon to protect the rights of transgender students. To be certain, the law impacting transgender individuals is multifaceted and evolving. Of notable significance, transgender students who have initiated legal claims against school districts for their discriminatory practices have all ended in favorable outcomes for the students.