Law Commons^™

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts J.D., Ph.D.

Tina F Botts J.D., Ph.D.

Nancy Leong’s thesis, in “Judicial Erasure of Mixed-Race Discrimination,” is that antidiscrimination law should make a switch from defining race “categorically” to defining it in terms of the perception of the would-be discriminator so as to better accommodate claims of multiracial discrimination and so as to better achieve what Leong sees as the goals of antidiscrimination law, i.e., the promotion of racial understanding, and the elimination of racism and racial discrimination. But, while Leong’s goals are admirable, the method she proposes for achieving these goals will not succeed. Antidiscrimination law cannot operate to promote racial understanding, or to eliminate racism …

Pro-Business Or Anti-Gay? Disguising Lgbt Animus As Economic Legislation, James A. Reed

Alex Reed

Several states are considering legislation that would prohibit cities from enacting nondiscrimination ordinances which are more inclusive than state law in terms of their protected classes. Although characterized as economic legislation, the evidence suggests that these bills are being introduced because of—not merely in spite of—their adverse effects upon the LGBT community. This article proposes that the Supreme Court apply heightened scrutiny to classifications based on sexual orientation and gender identity so as to expose the discriminatory motivations underlying these bills and ensure that courts are no longer complicit in denying LGBT Americans the equal protection of the laws.

Where Is Equal Protection? Applying Strict Scrutiny To Use Of Race By Law Enforcement., Evan Gerstmann

Evan Gerstmann

This article seeks to move the debate over the use of race by law enforcement beyond the current focus on racial profiling, arguing that the courts must apply strict scrutiny to all use of race by law enforcement, including the stopping and questioning of persons based on suspect descriptions that include race. The current debate implicitly (and sometimes explicitly) assumes that law enforcement’s use of race can be divided into unconstitutional racial profiling and all other uses of races, which are presumptively legitimate. However, when other institutions rely upon race, such as public universities implementing affirmative action programs, courts automatically …

Christian J.W.—A Tale Of Two Moms: Unequal Treatment Of Same-Sex Couples And A Proposed Change In Adoption Laws In Wisconsin, Matthew W. Giesfeldt

Matthew W. Giesfeldt

After In re the Termination of Parental Rights of Christian J.W., the legal community in Wisconsin is now more aware that same-sex, unmarried partners face more restrictive burdens when seeking to adopt one partner’s biological child than do heterosexual couples seeking to do the same. These burdens may raise Equal Protection concerns. These burdens also demonstrate that Wisconsin adoption laws simultaneously promote conflicting public policies. Finally, these burdens are unnecessarily wasting Wisconsinites’ resources.

Christian J.W. reveals an opportunity for the Wisconsin Legislature. Namely, the lawmaking body should act to eliminate this inequality in the state’s adoption laws. Such action will …