Digital Commons Network^™

Reflections On The Proposed United States Reservations To Cedaw: Should The Constitution Be An Obstacle To Human Rights, Ann Elizabeth Mayer

UC Law Constitutional Quarterly

The United States Constitution enjoys a special, sacred status that encourages the United States to treat its constitutional rights standards as definitive and therefore entitled to override conflicting standards in human rights treaties. When ratifying human rights treaties, the United States has entered reservations that are designed to ensure that constitutional rights standards will remain in force, even when they are less protective of rights than their international counterparts. Where women's rights are concerned, the United States has effectively rejected the international standard of equality for women, upholding instead the intermediate-tier standard developed under the Equal Protection Clause. Reluctant to …

Reverse Racism: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

UC Law Constitutional Quarterly

In this Essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Failure Of The Color-Blind Vision: Race, Ethnicity, And The California Civil Rights Initiative, Neil Gotanda

UC Law Constitutional Quarterly

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of …

Supreme Court Voting Behavior: 1995 Term, Richard G. Wilkins, Matthew K. Richards, Scott Worthington

UC Law Constitutional Quarterly

This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms. The 1995 figures reveal a Court in ideological tension. Although some statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state …

Viewpoint Discrimination, Marjorie Heins

UC Law Constitutional Quarterly

Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.

Specifically, this Article …

The Impact Of The Proposed California Civil Rights Initiative, Erwin Chemerinsky

UC Law Constitutional Quarterly

This article assesses the impact of the proposed California Civil Rights Initiative ("CCRI"). If enacted, the CCRI will eliminate a vast array of programs designed to remedy past discrimination and advance equality of opportunity. Although the CCRI abolishes preferences based on race or gender, the term "preferences" is not defined. There is a risk that courts will give the term a broad construction and an even greater risk that governments voluntarily will forego affirmative action programs of all sorts to avoid litigation. Additionally, the CCRI will expand the legal authority for gender discrimination because it expressly permits gender to be …

Understanding Affirmative Action, David Benjamin Oppenheimer

UC Law Constitutional Quarterly

This Article describes the law and practice of affirmative action under the United States Supreme Court's new restrictive rules, and presents the details of over one hundred studies demonstrating the prevalence of discrimination against women and minorities in the areas of education, employment, housing, health care, economic growth, wealth and poverty, and in the operation of the criminal justice system. Following a discussion of the law and practice of affirmative action and the psychology of discrimination, this Article presents results of studies demonstrating that public education throughout America is largely segregated, with minority children attending vastly inferior schools. It reports …

Merit-Teaching, Yxta Maya Murray

UC Law Constitutional Quarterly

Professor Yxta Maya Murray explores the notion of Merit-Teaching - the expansion of our current ideas of merit through the inclusion of the virtues and values of "Outsiders." Using insights developed by Aristotelian moral philosophers, critical race theorists, and feminist legal theorists as her guide, Professor Murray investigates Outsiders' particular virtues, and thus merits, that are forged from the experiences of oppression. Professor Murray brings these lessons into relief through the use of storytelling - her rendition of the life stories of her grandmother, her mother, and herself - which demonstrate Outsider virtue in action.

Debunking The Myth That Subdivision (C) Of The California Civil Rights Initiative Lessens The Standard Of Judicial Review Of Sex Classifications In California, Pamela A. Lewis

UC Law Constitutional Quarterly

Ms. Lewis argues that opponents of the California Civil Rights Initiative ("CCRI") have attempted to scare women as part of a campaign strategy to defeat the proposed constitutional amendment. In particular, she criticizes the opposition's arguments that, if CCRI passes, subdivision (c) will lower the standard of judicial review of all sex classifications under the California Constitution. The author argues that subdivision (c) will have no such effect as the subdivision's language is borrowed from the bona fide occupational qualification ("BFOQ") provision of the Civil Rights Act of 1964. BFOQs are recognized as narrow exceptions to federal and state antidiscrimination …

After Midnight: The Constitutional Status Of Juvenile Curfew Ordinances In California, Susan L. Freitas

UC Law Constitutional Quarterly

Youth is not a crime. Every person, regardless of age, is entitled to the protections of the United States Constitution. This seemingly apparent fact is not a reality for America's children, who are often treated as less than "full citizens" solely because of their age. The explosive proliferation of juvenile curfew ordinances in municipalities across California is one example of such treatment. Curfews have traditionally been used as a method of social control, often imposed in times of great upheaval and emergency, but have recently become the easy solution for communities exasperated by rising juvenile crime and violence. Although curfews …