Digital Commons Network^™

California's Anti-Discrimination Legislation, Proposition 14, And The Constitutional Protection Of Minority Rights: The Fiftieth Anniversary Of The California Fair Employment And Housing Act, David B. Oppenheimer

Golden Gate University Law Review

Fifty years ago, in 1959, the State of California outlawed racial discrimination in employment. But it took the California Legislature four more years to prohibit racial discrimination in private housing, and the immediate response was a successful campaign by the real-estate industry to repeal the law through a voter initiative. This essay tells the story of that campaign and the courageous judicial decisions that nullified the initiative.

Witt V. Department Of The Air Force Subjects "Don't Ask, Don't Tell" To Intermediate Scrutiny, Jessica L. Beeler

Golden Gate University Law Review

"Don't Ask, Don't Tell" ("DADT") refers to the statutory U.S. policy of excluding openly homosexual individuals from serving in the military. It prohibits members of the armed forces from engaging in homosexual acts, stating that they are gay or bisexual, or openly marrying a person of the same sex. Although the constitutionality of DADT has been upheld several times in federal Court, these cases preceded the United States Supreme Court's holding in Lawrence v. Texas. In Lawrence, the Supreme Court struck down a Texas antisodomy statute as unconstitutional and declared that the private homosexual conduct targeted by the law was …

Unlawful Status As A "Constitutional Irrelevancy"?: The Equal Protection Rights Of Illegal Immigrants, Jason H. Lee

Golden Gate University Law Review

This article focuses on state discrimination against illegal immigrants and the use of equal-protection doctrine to protect these immigrants' rights to enjoy the array of benefits and services offered by state governments. There are two main reasons why this article will focus on the Equal Protection Clause rather than on federal preemption doctrine, which is the other major tool that illegal immigrants can use to attack discriminatory state classifications. First, the equal-protection doctrine highlights the dignity and membership of an individual in American society in a way that the more structural preemption analysis does not. Second, preemption has become the …

Symbolic Speech And Equal Protection At The Las Vegas Fremont Street Experience: Aclu Of Nevada V. City Of Las Vegas, Christopher Donewald

Golden Gate University Law Review

In ACLU of Nevada v. City of Las Vegas, the Ninth Circuit held that a local "solicitation" ordinance enacted by the City of Las Vegas violated the plaintiffs' rights to expressive speech under the First Amendment. Additionally, the Ninth Circuit held that a "tabling" ordinance, which provided a labor-related exception, violated the plaintiffs' right to equal protection guaranteed by the Fourteenth Amendment. The court also decided an issue of flrst impression: whether the practice of erecting tables in a public forum for the purpose of disseminating information constitutes expressive activity and is therefore deserving of First Amendment protection. The Ninth …

What Does Diversity Mean In Seattle?: Parents Involved In Community Schools V. Seattle School District Number 1 Strikes Down The Use Of A Racial Tiebreaker, Katie York

Golden Gate University Law Review

This Note examines the Ninth Circuit decision in Parents Involved in Community Schools v. Seattle School District Number 1. The introduction provides an overview of the evolution of race-based jurisprudence. In addition, the introduction describes the "open choice" policy established by the School District. Part I explains the progression to strict scrutiny as the applicable standard of review for race-conscious admissions policies. Part II analyzes the procedural history of the Parents Involved cases. Part III compares the admissions policies between public high schools and universities. Part IV proposes a constitutionally permissible race-conscious placement policy for secondary education. Part V concludes …

Coal Workers’ Pneumoconiosis And Equal Protection In Kentucky – Cain V Lodestar Energy, Gardner V Vision Mining And Martinez V Peabody Coal, Mel Cousins

Mel Cousins

This note discusses a number of recent decisions of the Kentucky courts concerning coal workers pneumoconiosis and equal protection. The Kentucky Court of Appeals has recently found unconstitutional a special ‘consensus’ procedure by which coal workers affected by pneumoconiosis were required to prove their claim for workers compensation. The case is currently under appeal to the Kentucky Supreme Court.

Unequal Treatment Of United States Citizens: Eroding The Constitutional Safeguards, Irma Alicia Cabrera Ramirez

Golden Gate University Law Review

This comment examines the unequal treatment of United States citizens who are labeled enemy combatants by looking at the factual and procedural background of Padilla, Hamdi and Lindh. Next, this comment examines the origins of the label enemy combatant and the constitutional safeguards afforded to criminal defendants in similar situations as Padilla, Hamdi,and Lindh. The terrorist acts Padilla, Hamdi, and Lindh are accused of involve international laws. Therefore, this comment will examine the Geneva Conventions as a means to understand humanitarian protections that may cover Padilla and Hamdi. Finally, this comment will provide recommendations for some of the issues raised.

Not-So-Equal Protection: Securing Individuals Of Limited English Proficiency With Meaningful Access To Medical Services, Barbara Plantiko

Golden Gate University Law Review

This Comment focuses on how language discrimination manifests itself in various health care settings and how it deprives individuals with limited or no English proficiency of access to a variety of essential medical services. Part I of this article provides a brief overview of how courts and the legislature have dealt with language discrimination. Part II addresses the current conflict of the law regarding the difficulties in assessing and proscribing such discrimination in the medical context. Part III explores why the current case law and legislative efforts in this area are inadequate. Part IV proposes a solution as to how …

Environmental Justice Enforcement Requires Reassessment Under The Equal Protection Clause, Title Vi Of The Civil Rights Act, And Environmental Statutes, Kenneth Owen

Golden Gate University Law Review

This article will suggest what is required to prevail under the purposeful discrimination standard under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Interestingly, no equal protection environmental justice case or Title VI action has been presented to a jury charged with determining the factual issue of intent. The author will next explore the possibility of winning environmental justice cases under the citizen suit provisions that are part of most environmental statutes. Lastly, the author will suggest arguments to possible defenses that might be raised by defendants.

Criminal Procedure - Macfarlane V. Walter, Jennifer Benesis

Golden Gate University Law Review

In Macfarlane v. Walter, the United States Court of Appeals for the Ninth Circuit held that Washington state and county early-release credit systems for prisoners violate the equal protection clause of the United States Constitution. The early-release credit systems unconstitutionally provide fewer early-release credits to pre-trial detainees who cannot afford to post bail than to similarly-situated prisoners who post bail and serve their entire sentences after trial in state prison. The court held that awarding fewer good behavior credits for time served in county jail than for time served in state prison denies equal protection of the law to pre-trial …

Constitutional Law - Lipscomb V. Simmons: State Foster Care Funding For Non-Relatives Only, Social Welfare Or Parens Patriae, David Peterson

Golden Gate University Law Review

No abstract provided.

Allegheny Pittsburgh Coal V. Webster County: Are Proposition 13'S Days Numbered?, Bruce Stephan

Golden Gate University Law Review

A taxation system1 similar in practice to California's was ruled unconstitutional by the United States Supreme Court in Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, West Virginia. As a result of this decision, the future of Proposition 13, which has kept property taxes affordable for millions of Californians, is uncertain. This Comment will first. discuss Proposition 13 and the cases which have interpreted it. The Allegheny Court's decision will then be closely analyzed in an attempt to predict the outcome of a constitutional challenge to Proposition 13. Lastly, changes to Proposition 13 will be recommended that could …

Survey: Women And California Law, Alan Black, Katherine Hardy

Golden Gate University Law Review

This survey of California law, a regular feature of the Women's Law Forum, summarizes recent California Supreme Court and Court of Appeal decisions of special importance to women. A brief analysis of the issues pertinent to women raised in each case is provided.

The Miller-Wohl Controversy: Equal Treatment, Positive Action And The Meaning Of Women's Equality, Linda J. Krieger, Patricia N. Cooney

Golden Gate University Law Review

This Article has been constructed in three sections. Part I will examine the legal issues raised by the Miller-Wohl case by contrasting the equal treatment approach of the Pregnancy Discrimination Amendment with the positive action or reasonable accommodation approach of the MMLA. Such an examination leads to two conclusions. The first is that the PDA's equal treatment approach is by itself inadequate to assure equal employment opportunity for women who, because of their role as child bearers, confront employment obstacles not faced by men. The second is that laws such as the MMLA, which recognize and take affirmative steps to …

Rostker V. Goldberg: The Uneven Development Of The Equal Protection Doctrine In Military Affairs, Sara Macdwyer

Golden Gate University Law Review

This Note examines the Court's refusal in Goldberg to apply heightened scrutiny to a discriminatory statute. The Court never satisfactorily answered the constitutional challenge: Whether, under the equal protection component of the fifth amendment's due process clause, women as a class may be excluded from military registration. Further, this Note argues that the Court improperly and unnecessarily deferred to congressional findings in ruling that Congress acted within its authority by registering only men.

Constitutional Law, Brian Beverly, Curtis E. Blystone

Golden Gate University Law Review

No abstract provided.

State V Fowler: North Carolina Dwi Procedure Considered, Jeffrey Martin

Jeffrey Martin

This case has its origin in attempts by the government of North Carolina to reduce drunk driving fatalities and improve road safety.

Committee To Defend Reproductive Rights V. Myers: Medi-Cal Funding Of Abortion, Elizabeth Hendrickson

Golden Gate University Law Review

No abstract provided.

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

Equal Protection, Same-Sex Marriage, And Classifying On The Basis Of Sex, Mark Strasser

Mark Strasser

Over the past several years, several plaintiffs have challenged same-sex marriage bans under the respective state constitution’s equal protection guarantees. Some state supreme courts have struck down those laws on that basis, whereas others have not. This lack of uniformity is unsurprising, both because the language in one state constitution might differ from that of another and because, even where the language is the same, the jurisprudence in the respective states fleshing out the depth and breadth of the guarantees might differ. What seems more surprising is that courts cannot even agree about whether same-sex marriage bans employ a sex-based …

Beyond Equality And Adequacy: Equal Protection, Tax Assessments, And The Missouri Public School Funding Dilemma, Ronald K. Rowe Ii.

Missouri Law Review

This Note focuses on the 2009 challenge to the SB287 formula and specifically the arguments that should have been accepted by the Supreme Court of Missouri. Central to the rejected challenges were two arguments not sufficiently considered by the court in its opinion: (1) the new school funding formula violates equal protection provisions of the Missouri Constitution because it does not adequately provide equal treatment under the law with respect to the fundamental right of education, and (2) the tax assessment procedures prescribed by the new formula and implemented by the State Tax Commission do not comply with the Missouri …

Anti-Discrimination Law In Peril, Trina Jones

Missouri Law Review

In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss

Cornell Law Faculty Publications

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …

Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Teaching Values, Teaching Stereotypes: Sex Ed And Indoctrination In Public Schools, Jennifer S. Hendricks

Jennifer S. Hendricks

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: “If You Don’t Aim to Please, Don’t Dress to Tease,” and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer (Jennifer L. Greenblatt, 14 TEX. J. ON C.L. & C.R. 1 (2008)). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands. …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler

Aaron J Shuler

Abstract Scholars have written about the duality of the substantive due process and equal protection doctrines and described how they have worked in tandem, although many academics have focused on, or outright called for, a preference for the use of the equal protection clause. Another contingent of the academic community, however, has discussed the favored use of substantive due process in the last fifty years in providing equal treatment for all groups by ferreting out discrimination against marginalized minorities. Scholars have also separately alluded to substantive due process’ ability to protect the most existential of liberties. This works seeks to …

The Future Of Discriminatory Local Ordinances Aimed At Regulating Illegal Immigration, John Ryan Syllaios

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

On The Contemporary Meaning Of Korematsu: "Liberty Lies In The Hearts Of Men And Women", David A. Harris

David A Harris

ABSTRACT ON THE CONTEMPORARY MEANING OF KOREMATSU: “LIBERTY LIES IN THE HEARTS OF MEN AND WOMEN” In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign …