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Reflections Of A Litigator: Serrano V. Priest Goals And Strategies, Sid Wolinsky Apr 2022

Reflections Of A Litigator: Serrano V. Priest Goals And Strategies, Sid Wolinsky

BYU Education & Law Journal

In this article, I intend to describe what we hoped to achieve at that time and the strategies we used, and then to circle back and offer some observations about what we might learn from the litigation.


Publisher's Note, Kris Tina Carlston Jd, Mba Apr 2022

Publisher's Note, Kris Tina Carlston Jd, Mba

Brigham Young University Prelaw Review

The 2022 Brigham Young University Prelaw Review (Journal) continues to demonstrate Brigham Young University’s commitment to excellence in scholarship and student development. Throughout this past year, it has been a privilege to work with ambitious students who want to produce the best possible undergraduate legal journal.


Editor In Chief & Managing Editor's Note, Kaitlyn Marquis Editor In Chief, J. Caleb Strauss Managing Editor Apr 2022

Editor In Chief & Managing Editor's Note, Kaitlyn Marquis Editor In Chief, J. Caleb Strauss Managing Editor

Brigham Young University Prelaw Review

As we continue to navigate the challenges of a global pandemic, we have been honored to continue a tradition of scholarship with the publication of the 2022 edition of the Brigham Young University Prelaw Review. This year’s topics are grounded in issues on the cutting edge of legal thought, ranging from paid parental leave to the new frontier of Esports in collegiate athletics. Authors and editors were selected in July 2021, and since that time, they have honed their ideas and claims through devoted study and conversations with fellow authors and editors. After selecting their topics, authors and editors worked …


Constitutional Cautions Post-Covid-19: A Proposal For 5th Amendment Protection From Police Power Overreach, Ethan Finster, Jessica Dofelmire, Editor Apr 2022

Constitutional Cautions Post-Covid-19: A Proposal For 5th Amendment Protection From Police Power Overreach, Ethan Finster, Jessica Dofelmire, Editor

Brigham Young University Prelaw Review

The invocation of police powers by state governments throughout the Covid-19 pandemic to restrict business activity created a legal protection around government action that prevents 5th Amendment claims. This protection persists whether or not those actions fit within precedential criteria for takings. While police powers are certainly an important aspect of governance in times of crisis, the infringement of individuals’ constitutional rights that accompanied their utilization must be addressed. Moreover, their use during the pandemic set a potentially dangerous precedent for their use in future emergencies. Considering the growing concern surrounding the adequacy of Takings Clause precedent for preventing government …


Crime And Unequal Punishment: Proving Discriminatory Intent In Felony Disenfranchisement, Abel Huskinson, Kaitlyn Long Apr 2022

Crime And Unequal Punishment: Proving Discriminatory Intent In Felony Disenfranchisement, Abel Huskinson, Kaitlyn Long

Brigham Young University Prelaw Review

Felony disenfranchisement, or barring convicted felons from voting, is a punishment used in almost every state. Although states differ in their severity of felony disenfranchisement, these laws resulted in 5.1 million Americans being unable to participate in the 2020 national election. The Supreme Court found in Hunter v. Underwood that felony disenfranchisement laws would violate the Equal Protection Clause of the Fourteenth Amendment if they contained “both [an] impermissible racial motivation and racially discriminatory impact.” Recent scholarship has found felony disenfranchisement to disproportionately affect marginalized racial groups. As such, it becomes the burden of felony disenfranchisement constitutional challenges to prove …


Crossing Borders: The Overlap And Conflict Of International And Domestic Laws Regarding Refugees And Asylum Seekers, Yunha Hwang, Belle De La Rosa, Editor Apr 2022

Crossing Borders: The Overlap And Conflict Of International And Domestic Laws Regarding Refugees And Asylum Seekers, Yunha Hwang, Belle De La Rosa, Editor

Brigham Young University Prelaw Review

The policies of the United States regarding refugees and asylum seekers within the past decade have consistently conflicted with international standards, in regards to the 1951 Refugee Convention and the following 1967 Protocol. Especially in recent years, the United States has been producing a line of increasingly exclusive policies and caps that hinder the resettlement process and as a result, has been causing increased violations against the principles listed in Article 14 of the Universal Declaration of Human Rights (1948). The paper analyzes the discrepancy and overlap between international laws and domestic laws in the United States. Especially at a …


The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor Apr 2022

The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor

Brigham Young University Prelaw Review

Petitioners in Hunter v. Department of Education questioned the constitutionality of the Title IX religious exemption as the basis of their 2021 class-action lawsuit. They claimed that more than 30 religious schools maintained discriminatory policies against LGBTQ students under the exemption. The religious exemption, often painted as unconstitutional discrimination, permits religious schools' adherence to sincerely held religious beliefs—and promotes a distinctive religious education that secular schools lack. This paper examines legal precedents relevant to religious freedom, higher education, and discrimination that demand the Title IX religious exemption remains in effect.


Making The Case For Paid Parental Leave In The United States, Jane Johnson, Sarah Calvert Apr 2022

Making The Case For Paid Parental Leave In The United States, Jane Johnson, Sarah Calvert

Brigham Young University Prelaw Review

Despite being one of the most influential countries in the world, the United States is still one of only three developed countries that does not mandate paid parental leave on a federal level. Although some federal legislation does offer unpaid leave, these laws are insufficient to meet the needs of working parents. This paper examines existing parental leave laws to highlight the duration of leave and methods of funding used by some U.S. states and other countries worldwide. We also review multiple studies that demonstrate benefits of paid parental leave for both parents and children. This paper ends with a …


Esports And Title Ix: Addressing Scholarship Distribution Across Gender Lines In Collegiate Esports Programs, Adam Martin Apr 2022

Esports And Title Ix: Addressing Scholarship Distribution Across Gender Lines In Collegiate Esports Programs, Adam Martin

Brigham Young University Prelaw Review

Since its implementation in 1972, Title IX protects people in the United States from discrimination on the basis of sex under any education program or activity receiving federal financial assistance. Currently, women do not receive scholarship funds from universities with esports programs proportionate to their overall participation in esports. The Department of Education’s Office of Civil rights, which oversees Title IX implementation, currently does not have a concrete definition for “sport.” Instead, they evaluate any given activity as a “sport” under Title IX on a case-by- case basis using the following three criteria: whether or not the activity has a …


Front Matter Apr 2022

Front Matter

Brigham Young University Prelaw Review

No abstract provided.


A Balancing Act: Overcoming Incommensurability In Rights Adjudication, Samantha Knutson Jex Apr 2022

A Balancing Act: Overcoming Incommensurability In Rights Adjudication, Samantha Knutson Jex

Brigham Young University Prelaw Review

The Supreme Court's current system for rights adjudication is insufficient in cases where both sides feel that a fundamental right has been violated, such as Masterpiece Cakeshop v. Colorado Civil Rights Commission. To overcome this insufficiency, I argue that the Court should implement a new test that is a modified combination of the Supreme Court's strict scrutiny and the test used internationally for rights adjudication--the proportionality test. I call this new test the "Incommensurability Test" and explain how it works and why it is beneficial for rights adjudication in the United States. Applying the "Incommensurability Test" would enable the Court …


Medical Accreditation For Foreign-Educated Refugees: An Undue Burden, Katherine Jolley, Alex Hansen Apr 2022

Medical Accreditation For Foreign-Educated Refugees: An Undue Burden, Katherine Jolley, Alex Hansen

Brigham Young University Prelaw Review

Historically, the United States has maintained a policy of robust assistance to refugees that enter the country. Refugee relief includes short-term health coverage and employment services. Unfortunately, many international medical graduates who come as refugees face excessive barriers to join the healthcare industry when they arrive. In light of emergency adjustments to the accreditation processes during the COVID-19 pandemic, this article proposes that the accreditation process for foreign-educated healthcare workers poses an undue burden on refugees.


The Shadow Docket: What Is Happening And What Should Be Done, Collin Mitchell Apr 2022

The Shadow Docket: What Is Happening And What Should Be Done, Collin Mitchell

Brigham Young University Prelaw Review

In light of recent emergency decisions made by the Court ranging from issues addressing the COVID-19 pandemic, religious freedom, abortion rights, and polarized redistricting plans, the Supreme Courts use of the shadow docket has come under renewed scrutiny. This paper argues that the Court's use of the shadow docket, while permissible in the past, is threatening the legitimacy of the Supreme Court and unduly burdening the American Judicial System at large. Due to these effects, this paper advocates to reduce the Supreme Court's use of the shadow docket through the creation of a new specialized court system to handle emergency …


Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel Apr 2022

Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel

Brigham Young University Prelaw Review

Diversity jurisdiction authorizes federal courts to act as impartial tribunals over certain matters of state law. To preserve states' judicial sovereignty, the US Supreme Court has prohibited diversity courts from directly interpreting state law, holding that federal courts must "predict" the legal outcome as if a state court had adjudicated. However, litigant abuse hinders consistency in legal outcomes. Discrepancies between courts spur forum shopping, which cyclically generates more legal incongruence. This paper identifies a "toxic cycle" plaguing diversity jurisdiction and offers five prescriptions which courts and Congress must use to reverse it.


Modernizing The Birds And The Bees: New Standards For Sexual Education, Ashley Whetten, Katie Whitehead Apr 2022

Modernizing The Birds And The Bees: New Standards For Sexual Education, Ashley Whetten, Katie Whitehead

Brigham Young University Prelaw Review

Conversations surrounding sexual education usually revolve around comprehensive sexual education curricula and abstinence-only until marriage curricula. These conversations and the federal funding budgets that developed from these programs prevent innovation and modernization of sexual education programs. Furthermore, research has demonstrated major flaws in both curricula. This paper does not argue for one approach to sexual education over another; instead, the proposals in this paper aim to bridge long-standing disputes on sexual education by creating a new standard of sexual education that also addresses the major downfalls of both current curricula. In order to qualify for funding the program would require …


Ambiguity In Legal Non-Conforming Use Statuses, Zeke Peters Apr 2022

Ambiguity In Legal Non-Conforming Use Statuses, Zeke Peters

Brigham Young University Prelaw Review

Legal nonconforming uses have similar definitions and codes throughout the United States. However, certain restrictions and rules can vary so much that ambiguity makes the truth harder to see. Many nonconforming uses are limited in their “expansion” or “enlargement.” However, what defines these terms is unclear in various codes across state lines. This paper proposes a framework for cities to adopt to have a more uniform definition with some exemptions of these terms. While planning and land use code should vary based on the specific needs of each municipality, this framework definition can help create a more concrete definition for …


Adult Conservatorship In The United States: Flaws And Proposed Solutions To The Legal System, Margaret Sheffield, Alex Stevens Apr 2022

Adult Conservatorship In The United States: Flaws And Proposed Solutions To The Legal System, Margaret Sheffield, Alex Stevens

Brigham Young University Prelaw Review

Despite attempts to protect incapacitated adults in the United States, financial exploitation of the elderly and disabled remains a serious problem. Adult conservatorships are often established to offer incapacitated adults protection. However, many cases of adult conservatorships lead to increased abuse due to lack of accountability from conservators. This paper provides a brief overview of abuse towards incapacitated adults and proposes a solution in the form of a federal office entitled the Office of Adult Conservatorship and Guardianship Enforcement (OACE) which would be established under the United States Department of Health and Human Services.


Full Issue Apr 2022

Full Issue

Brigham Young University Prelaw Review

No abstract provided.


Segregation And School Funding Disparities In California: Contemporary Trends 50 Years After Serrano, David S. Knight, Nail Hassairi, David G. Martinez Mar 2022

Segregation And School Funding Disparities In California: Contemporary Trends 50 Years After Serrano, David S. Knight, Nail Hassairi, David G. Martinez

BYU Education & Law Journal

In this paper, we present a longitudinal analysis of the school finance system of California and assess changes that have taken place over the past 30 years.


Front Matter Mar 2022

Front Matter

BYU Education & Law Journal

No abstract provided.


A Tale Of Serrano: Three V. Priest, John E. Coons Mar 2022

A Tale Of Serrano: Three V. Priest, John E. Coons

BYU Education & Law Journal

Of my fifty-years of post-Serrano observations, the clearest is that more of the same is not the answer to this society's worst public school problem: our deliberate and unnecessary purging of the legal responsibility and authority of the lower-income parent, the same authority and responsibility so highly valued by the middle class.


State Courts And Education Finance: Past, Present And Future, Michael A. Rebell Mar 2022

State Courts And Education Finance: Past, Present And Future, Michael A. Rebell

BYU Education & Law Journal

Fifty years ago, few legal analysts would be predicted this spate of creative state court activity regarding educational rights.


Serrano V. Priest 50th Anniversary: Origins, Impact And Future, Oscar Jimenez-Castellanos, Lawrence O. Picus Mar 2022

Serrano V. Priest 50th Anniversary: Origins, Impact And Future, Oscar Jimenez-Castellanos, Lawrence O. Picus

BYU Education & Law Journal

The purpose of this special issue is to revisit the origins and impact of Serrano and to speculate on the future directions of school finance litigation. We provide a synopsis of each manuscript a the end of this introduction.


John Serrano Did Not Vote For Proposition 13, William A. Fischel Mar 2022

John Serrano Did Not Vote For Proposition 13, William A. Fischel

BYU Education & Law Journal

Rather than advancing new arguments, this essay will review my work on this subject in the form of a memoir (with popular-song headings that betray my vintage) about my evolving interest in the Serrano and Proposition 13 connection.


Surfing The Waves: An Examination Of School Funding Litigation From Serrano V. Priest To Cook V. Raimondo And The Possible Transition Of The Fourth Wave, Christine Rienstra Kiracofe, Spencer Weiler Mar 2022

Surfing The Waves: An Examination Of School Funding Litigation From Serrano V. Priest To Cook V. Raimondo And The Possible Transition Of The Fourth Wave, Christine Rienstra Kiracofe, Spencer Weiler

BYU Education & Law Journal

To mark the important anniversary of the landmark school finance case Serrano v. Priest, we examine the small(er) but important role that federal claims have played in school funding litigation.


A Proposal For Paid Family Leave In Utah, Erin Wong Jan 2022

A Proposal For Paid Family Leave In Utah, Erin Wong

Student Works

When a woman gives birth, the arrival of that child will have a statistically significant negative impact on that woman’s employment, earning potential, health, and overall wellbeing. The arrival of a child has no statistically significant impact on men’s employment, earning potential, or overall health and wellbeing. The labor force experiences a drain of talent and productivity when mothers leave the market in large numbers after having a child. Many mothers who wish to remain the workforce after childbirth are faced with the impossible choice of their child’s health or their own job and earning potential. Many fathers or partners …


Front Matter Jan 2022

Front Matter

BYU Education & Law Journal

No abstract provided.


Reimagining The Right To Public Education, Logan Miller Jan 2022

Reimagining The Right To Public Education, Logan Miller

BYU Education & Law Journal

Critiques of the United States public education system abound. Many of these critiques expose the reality that the public school system regularly fails to do what it purports to do. Others discuss how the public school system in fact achieves some of its more insidious purposes. When the reality of the public schooling experience – especially for students from marginalized communities – is juxtaposed with the lofty rhetoric surrounding public education, a substantial disjuncture is evident: there is a gap between the idealized notions of public education and the actual learning environments and outcomes for many public school students. For …


Three Common-Sense Measures To Limit The School-To-Prison Pipeline In Maryland, John Marinelli Jan 2022

Three Common-Sense Measures To Limit The School-To-Prison Pipeline In Maryland, John Marinelli

BYU Education & Law Journal

In 2016, a Salisbury, Maryland eighth grader left class without permission and ran through the halls of his middle school. As punishment for his adolescent defiance, the boy was not sent home or suspended but rather pepper-sprayed, handcuffed, and criminally prosecuted.

This episode exhibits the harsh realities of a school-to-prison pipeline that annually funnels thousands of Maryland students into the criminal justice system as a consequence of in-school misbehavior. Criminal interaction of this sort negatively affects children in numerous well-documented, often disastrous ways. To improve these circumstances in Maryland, three contributing factors stand out as ripe for change: the state’s …


Education Abroad For Students With Disabilities: Legal Implications, Heidi Fischer Jan 2022

Education Abroad For Students With Disabilities: Legal Implications, Heidi Fischer

BYU Education & Law Journal

Prior to the COVID-19 pandemic, United States (U.S.) student participation in education abroad (EA) programs increased by more than thirty percent over a ten-year span.1 During the 2018-19 academic year, more than 36,000 students studying abroad identified as students with disabilities (nearly ten percent).2 The steady rise in U.S. student participation in EA programs in the past decade not only suggests renewed post-pandemic growth, but it also supports the idea that greater quantities of students with disabilities will study abroad during their postsecondary education than in previous years. With nearly one in five undergraduate students identifying as having a dis-ability,3 …