Fourteenth Amendment Commons^™

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …

Not White Enough, Not Black Enough: Reimagining Affirmative Action Jurisprudence In Law School Admissions Through A Filipino-American Paradigm, Joseph D. G. Castro

Pepperdine Law Review

Writing the majority opinion upholding the use of racial preferences in law school admissions in 2003, Justice Sandra Day O’Connor anticipated that racial preferences would no longer be necessary in twenty-five years. On the contrary, 2021 has seen the astronomic rise of critical race theory, the popularity of race-driven “diversity” initiatives in higher education, and the continued surge of identity politics in the mainstream. So much has been written on affirmative action—what else could this Comment add to the conversation? Analyzing the Court’s application of strict scrutiny through a Filipino- American paradigm, this Comment ultimately concludes that affirmative action in …

The Case Of The Smart City, Bruce Peabody, Kyle Morgan

Brigham Young University Journal of Public Law

January 7, 2021, marked the seventy-fifth anniversary of Marsh v. Alabama, the case in which the Supreme Court of the United States extended the protections of the First and Fourteenth Amendments to a privately held “company town.” This article makes the case that the longstanding Marsh precedent, and the basic jurisprudential framework it set out, remain important in working through twenty-first century problems regarding public-private partnerships and their impact on constitutional rights. We bring this old ruling into our new century by extrapolating a hypothetical legal controversy from legislation currently under consideration in the states. Thus, the heart of our …

Freedom, Democracy, And The Right To Education, Derek W. Black

Northwestern University Law Review

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African-Americans, seeing education as the means to both mental and physical freedom, made extraordinary …

Tinhatting The Constitution: Originalism As A Fandom, Stacey M. Lantagne

Faculty Scholarship

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Crisis As A Catalyst For Rebirth: Disrupting Entrenched Educational Inequality In The Covid Era, Erin M. Carr

Journal of Race, Gender, and Ethnicity

The public health and socio-economic crisis that has resulted from the pandemic has amplified existing social inequalities. The disparate racial impact of COVID-19 is a consequence of enduring social, economic, and political injustices that manifest in the form of health status and access, wealth, employment, and housing, all of which have contributed to a greater susceptibility to the virus by racially minoritized communities. racial inequities, educational inequities,

The compounding of racial inequities in all aspects of American life has logically extended to the educational sphere, where pre-pandemic educational inequities have been greatly exacerbated. In marking the passage of the 65th …

Foreword, Michelle E. Mazzola

Journal of Race, Gender, and Ethnicity

No abstract provided.

“Seeking The Fruits Of Their Labors”: The Story Of Johnson V. Mcadoo, The First Major Reparations Case, John G. Browning

Journal of Race, Gender, and Ethnicity

No abstract provided.

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

40 Acres And A Mule, Plus Interest: A Survey On Emerging Reparation And Racial Equity Measures, Danielle D. Rogers, Michael A. Lawrence

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Antiracist Constitution, Brandon Hasbrouck

Scholarly Articles

Our Constitution, as it is and as it has been interpreted by our courts, serves white supremacy. The twin projects of abolition and reconstruction remain incomplete, derailed first by openly hostile institutions, then by the subtler lie that a colorblind Constitution would bring about the end of racism. Yet, in its debut in Supreme Court jurisprudence, colorblind constitutionalism promised that facially discriminatory laws were unnecessary for the perpetuation of white supremacy. That promise has been fulfilled across nearly every field of law as modern white supremacists adopt insidious, facially neutral laws to ensure the oppression of Black people and other …

Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley

Scholarly Articles

Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …

Moving From Harm Mitigation To Affirmative Discrimination Mitigation: The Untapped Potential Of Artificial Intelligence To Fight School Segregation And Other Forms Of Racial Discrimination, Andrew Gall

Catholic University Journal of Law and Technology

No abstract provided.

Nomos And Nation: On Nation In An Age Of “Populism”, John Valery White

Touro Law Review

Robert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by …

Abortion, Pregnancy Loss, & Subjective Fetal Personhood, Greer Donley, Jill Wieber Lens

Articles

Longstanding dogma dictates that recognizing pregnancy loss threatens abortion rights—acknowledging that miscarriage and stillbirth involve a loss, the theory goes, creates a slippery slope to fetal personhood. For decades, anti-abortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss, and more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.

This Article is the first to argue that this perceived tension can be reconciled through …

Minority And Vulnerable Populations Voting By Mail: A Convenience Or A Disadvantage, Kylan Sophia Josephine Memminger

Washington and Lee Journal of Civil Rights and Social Justice

Mail-in voting has feverishly gained popularity in the United States over the last few primary and general elections. In light of this new balloting reality, a trend has emerged. Statistics from minority and vulnerable populations reveal that mail-in ballots composed and sent by these groups have been consistently rejected at a higher rate compared to majority populations. This Note begins by surveying the constitutional background for bringing a challenge to voting rights legislation, while confronting the divisive history of legal precedent surrounding these claims. This Note then analyzes the Supreme Court’s decision in Crawford v. Marion County Election Board and …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …