Digital Commons Network^™

The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher

Catholic University Law Review

Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.

During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along …

Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney

Catholic University Law Review

How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss

Catholic University Law Review

As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor …

Will Due Process Be Returned To Academic Suspension?: An Analysis Of Academia's Rejection Of The Title Ix Final Rule, Andrew F. Emerson

Catholic University Law Review

In 2011, the Department of Education ("DOE") under the Obama administration issued its Dear College Letter ("DCL") ordering publicly funded educational institutions to undertake aggressive actions to deter what was deemed an epidemic of sexual violence on college campuses. DOE subsequently aggressively enforced the directives of the DCL with scores of costly investigations of college disciplinary systems and threatened withdrawal of federal funding for institutions that failed to respond to sexual harassment claims aggressively. Hundreds of lawsuits followed in the wake of the DCL's issuance. Specifically, the flood of litigation was initiated by males contending they were briskly expelled, suspended, …

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

Is Title Vii > Ix?: Does Title Vii Preempt Title Ix Sex Discrimination Claims In Higher Ed Employment?, Mckenzie Miller

Catholic University Law Review

Across all job sectors, women working full-time earned about 80 percent of what men earned in 2016. Within higher education this gender gap persists in salary, hiring, promotions, and other aspects of academic employment. Professors can seemingly attempt to remedy this under Title VII of the Civil Rights Act or Title IX of the Education Amendments, both of which prohibit sex discrimination in higher education. Circuits, however, have split as to whether Title VII preempts Title IX in actions for employment discrimination in higher education.

The Third Circuit revived this split in Doe v. Mercy Catholic Medical Center, and …

Classifying Wcag 2.0 Guidelines As The Legal Standard For Websites Under Title Iii Of The Americans With Disabilities Act, Toni Cannady

Catholic University Law Review

Over the last two decades, technological advancements have driven significant changes in society that have led to more productivity, more convenience, and more accessibility. In particular, websites serve as a platform for consumers to engage in commerce. Under Title III of the Americans with Disabilities Act, public accommodations are prohibited from discriminating on the basis of disability. Nonetheless, to date, the law “has failed to keep pace with these technological advances” creating profound effects for individuals with disabilities and businesses alike. However, in the absence of clearly defined standards, lawsuits by plaintiffs have fueled a new body of judicially made …

The Human Rights Movement And The Prevention Of Evil: The Need To Look Inward As Well As Out, Jeffrey A. Brauch

Catholic University Law Review

The modern human rights movement began as a response to great evil perpetrated by individuals and nations against others during and preceding World War II. The movement has been dedicated to protecting the rights of individuals by confronting evil and holding nations accountable should efforts to prevent it fail.

This article contends that while the human rights movement is good at confronting evil “out there,” it has failed in important ways to recognize flaws within itself. In particular, it displays a hubris that shows itself in two ways. First, the movement has embraced a utopian expansion of rights to be …

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

Classifying Obesity As A Disability Under The Americans With Disabilities Act: How Seff V. Broward County Is Incongruent With Recent Ada Litigation, Maura Flaherty Mccoy

Catholic University Law Review

This Note discusses how employer wellness programs are potential breeding grounds for Americans with Disabilities Act discrimination claims in light of recent ADA cases relating to obesity and how courts’ treatment of the safe harbor provision of the ADA is incongruent with the broadening of ADA claims. It looks at the provisions of the ADA and how courts have traditionally defined “disability” in obesity cases, describes the ADA safe harbor provision, and discusses the advent of corporate wellness programs. This Note then analyzes Seff v. Broward County, the most notable wellness program case to-date, and how the court’s decision …

Abolish Anonymous Reporting To Child Abuse Hotlines, Dale Margolin Cecka

Catholic University Law Review

All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous …

The Meme Of Voter Fraud, Atiba R. Ellis

Catholic University Law Review

The meme of voter fraud is the idea that unworthy voters are attacking the electoral system by voting fraudulently through impersonation or other bad acts. Although scholars of election law aptly demonstrate that the meme is a myth, the meme nonetheless endures as a rationale for the continued passage of heightened voter regulations like voter identification laws. Scholarship critiquing the voter fraud meme relies on partisanship as the prime explanation for voter fraud arguments. This explanation is incomplete in light of the fact that proponents of the myth continue to believe it on an ideological level even when the lack …

Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston

Catholic University Law Review

No abstract provided.

Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge

Catholic University Law Review

No abstract provided.

The Use Of Uncounseled Tribal Court Convictions In Federal Court Under The Habitual Offender Provision Of The Violence Against Women Act: A Violation Of The Sixth Amendment Right To Counsel Or An Extension Of Comity?, Rebecca Zimmerman

Catholic University Law Review

No abstract provided.