Constitutional Law Commons^™

Saul Alinsky And The Litigation Campaign To Win The Right To Same-Sex Marriage, 42 J. Marshall L. Rev. 643 (2009), Gerald N. Rosenberg

UIC Law Review

No abstract provided.

Social Movements, Social Process: A Response To Gerald Rosenberg, 42 J. Marshall L. Rev. 671 (2009), Laura Beth Nielsen

UIC Law Review

No abstract provided.

You Can Move In But You Can't Stay: To Protect Occupancy Rights After Halprin, The Fair Housing Act Needs To Be Amended To Prohibit Post-Acquisition Discrimination, 42 J. Marshall L. Rev. 751 (2009), Scott N. Gilbert

UIC Law Review

No abstract provided.

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

A Radically Immodest Judicial Modesty: The End Of Facial Challenges To Abortion Regulations And The Future Of The Health Exception In The Roberts Era, B. Jessie Hill

Faculty Publications

If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. And indeed, some commentators have suggested that there are signs of newfound judicial restraint in the Roberts Court. One example of this purported restraint is the Roberts Court’s expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face. The Roberts Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number …

Safford Unified School District No. 1 V. Redding, And The Future Of School Strip Searches, Lewis R. Katz

Faculty Publications

Each year in America an unknown number of children in primary and secondary schools are strip searched by teachers and/or school administrators, forced to remove pants and shirts down to their underwear and sometimes forced to expose their breasts and genitals. In Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (29), the Supreme Court weighed in on the issue, finding that school officials violated the child’s Fourth Amendment rights during a strip search but reversing the Ninth Circuit and awarding the school officials qualified immunity not withstanding the ineptitude of the investigation. The Court purported to apply …

Title Vi Disparate Impact Claims Would Not Harm National Security - A Response To Paul Taylor, 46 Harv. J. On Legis. 503 (2009), Michael T. Kirkpatrick, Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor's assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress's original intent, and argue that …

The Voting Rights Act Through The Justices' Eyes: Namudno And Beyond, Joshua A. Douglas

Law Faculty Scholarly Articles

The most surprising action from the Supreme Court's latest term may be what it did not do: strike down Section 5 of the Voting Rights Act (VRA) as unconstitutional. After the oral argument in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), most Court observers expected the Court to issue a strongly divided opinion invalidating Congress's reauthorization of the provision that requires certain "covered jurisdictions" to seek preapproval, or preclearance, before enacting any change that affects voting. Instead, the Court issued an 8-1 opinion that avoided the constitutional question and decided the case on a narrower statutory …

Doctrinal Dilemma, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009).

Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

UF Law Faculty Publications

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt. Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

Can We Talk? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Law Faculty Scholarship

No abstract provided.

Are State Constitutions Un-American?, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Blackboard Jungle: Delinquency, Psychiatry, And The Bio-Politics Of Brown, Anders Walker

Studio for Law and Culture

In 1955, Metro-Goldwyn-Mayer released a controversial film about juvenile delinquency entitled Blackboard Jungle. Georgia Governor Ernest Vandiver subsequently used the film as a metaphor for what would happen to southern schools were Brown enforced, marking the beginnings of a much larger campaign to articulate southern resistance to integration in popular terms. Taking Blackboard Jungle as a starting point, this article recovers the intersection between discourses of delinquency and desegregation at mid-century, showing how civil rights groups and segregationists alike both drew from mass culture and social psychiatry to advance their constitutional agendas. It concludes by showing that even as …

Constitutional Enforcement By Proxy, John F. Preis

Law Faculty Publications

Americans love their Constitution. But love, as we all know, is blind. This may explain why we often look to constitutional law to vindicate our civil rights while ignoring the potential of sub-constitutional law. Federal courts have not ignored this possibility, however, and have increasingly forced civil rights plaintiffs to seek relief using sub-constitutional law where it is available. A victim of discrimination, for example, might be denied the chance to invoke the Equal Protection Clause and told instead to rely on a federal antidiscrimination statute. In this and other cases, courts seem to believe that constitutional rights can be …

The Conscience Of A Court, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author explains his conclusion that the Supreme Court, as a matter of conscience, considers racial discrimination to be good for America. That conclusion, he argues, offers the only plausible account of the Court's repeated insistence on displacing populist efforts to promote racial equality with the Court's own, more-regressive, version of expedient racial politics. Although the Court has had what is at best a checkered history when called upon to adjudicate claims of racial injustice, until now, the contemporary Court might arguably have been accorded the benefit of the doubt. But after its five-to-four ruling in the 2007 Resegregation case, …

Gardasil A Year Later: Cervical Cancer As A Model For Inequality Of Access To Health Services, Micah Globerson

Cardozo Journal of Equal Rights & Social Justice

This article updates a prior feminist legal analysis of Gardasil, the vaccine against Human Papillomavirus ("HPV"), in light of new developments. Recent discoveries confirming that HPV poses threats to men led Merck & Co. ("Merck") to apply for FDA approval to market Gardasil to males. These developments have renewed focus on the recurring question of whether making Gardasil vaccination a prerequisite for boys' school participation will arouse the same public condemnation that resulted from the prior mandate targeting girls. Another new development involves a vaccine panel recommendation by the Centers for Disease Control ("CDC") that inadvertently resulted in a policy …

Rebalancing The Scales: Restoring The Availability Of Disparate Impact Causes Of Action In Title Vi Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.

Misinformed Consent: Non-Medical Bases For American Birth Recommendations As A Human Rights Issue, Lisa L. Chalidze

NYLS Law Review

No abstract provided.

Changing Equalities, Jack B. Weinstein

NYLS Law Review

No abstract provided.

New York Recognition Of A Legal Status For Same-Sex Couples: A Rapidly Developing Story, Arthur S. Leonard

NYLS Law Review

No abstract provided.

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

Bah V. Mukasey, Sandrine Dehaeze

NYLS Law Review

No abstract provided.

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

The Hangman's Noose And The Lynch Mob: Hate Speech And The Jena Six, Jeannine Bell

Articles by Maurer Faculty

Taking the hangman's noose hanging in Jena, Louisiana in 2006 as a starting point, this Article begins by placing the hanging of a noose in historical context. The Article then proceeds to explore contemporary manifestations of noose hanging in the workplace, in schools and other settings. The Article examines noose hangings that occurred around the country since the display in Jena to explore the social meaning of a noose. Also examined are media constructions of noose hanging and the perception that some Blacks targeted by noose hanging have had of these incidents. The article concludes with a victim based reasonable …

Adding Social Condition To The Canadian Human Rights Act, A. Wayne Mackay, Natasha Kim

Reports & Public Policy Documents

Almost a decade ago, in June 2000, the Canadian Human Rights Act Review Panel conducted a comprehensive review of the Canadian Human Rights Act [CHRA] and recommended that “social condition” be added as a prohibited ground of discrimination. Since then, no action has been taken to implement this recommendation, despite calls for action from international bodies, political actors, human rights agencies and organizations, and academic commentators to provide protections from discrimination for those suffering from social and economic disadvantage. The authors analyze the experiences at the provincial level with socio-economic grounds of discrimination, jurisprudential developments under the Canadian Charter of …

Symposium: Defining Race: Colorblind Diversity: The Changing Significance Of "Race" In The Post-Bakke Era, Bridgette Baldwin

Faculty Scholarship

In 1954, fifty-eight years after the Plessy v. Ferguson decision, the Supreme Court was afforded another opportunity to reverse the “separate but equal doctrine” in Brown v. Board of Education of Topeka (Brown I). Brown I was a consolidation of five civil rights cases from the District of Columbia, Delaware, Kansas, Virginia, and South Carolina that attempted to change race relations in America by affording African Americans a piece of the pie. A few other cases soon followed Brown I. In 1963, Goss v. Board of Education of Knoxville proclaimed that any program that structurally appeared to maintain segregation would …

Postracial Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Claims of racial injustice can be challenged by arguing that the culture makes it possible for minorities to compete with whites on a level playing field. Under this reasoning, racial disparities that continue to inhere in the allocation of societal benefits and burdens must be caused by the attributes of individual minority group members themselves, rather than by any invidious consideration of their race. The election of President Obama now gives this argument more apparent plausibility than it has had in the past. Indeed, if one were inclined to preserve the nation’s tradition of privileging white interests over the interests …

"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks

Publications

This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …