Constitutional Law Commons^™

Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda

Journal Articles

Although there are surmountable legal barriers to racial integration in education, fuller integration is possible. But first, whites must see how they benefit from diversity, and, second, whites must take simple steps toward integration that may, in turn, reveal to whites their desire to become more fully integrated. These two steps may help remove the limiting point to true integration.

Lessons Learned From Comparing The Application Of Constitutional Law And Anti-Discrimination Law To African Americans In The U.S. And Dalits In India In The Context Of Higher Education, Kevin D. Brown, Vinay Sitapati

Articles by Maurer Faculty

In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. and Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country's population. Based upon the 2000 census, African-Americans constitute 12.7% of the American populations, and, according to the 1991 Census Report of India, Dalits make up 16.5% …

Community, Diversity, And Equal Protection: The Louisville And Seattle School Cases (Symposium Introduction), Robert M. Ackerman

Law Faculty Research Publications

No abstract provided.

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

Twenty years ago, Professor Charles Lawrence wrote “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism.” This article is considered a foundational document of Critical Race Theory and is one of the most influential and widely cited law review articles. The article argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court’s interpretation of antidiscrimination laws disserved the value of equal citizenship expressed in those laws because many forms of racial bias are unconscious. Professor Lawrence suggested that rather than look for discriminatory motive, the Court should examine the cultural meaning …

Disintegration, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The silver lining behind the Supreme Court's decision to disintegrate the Seattle and Louisville public schools is that the decision also runs the risk of disintegrating judicial review. Parents Involved in Community Schools v. Seattle School District No. 1 holds that the Constitution bars voluntary, race-conscious efforts by two local school boards to retain the racial integration that they worked so hard to achieve after Brown. In so holding, the Court curiously reads the Equal Protection Clause as preventing the use of race to pursue actual equality, and instead insists on a type of formal "equality" that has historically …

Moral Conflict And Conflicting Liberties, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

The authors' goal in this chapter is to surface some of the commonalities between belief liberty and identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. She first wants to make transparent the conflict that she believes exists between laws intended to protect the liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. The author believes those who advocate for LGBT equality have downplayed the impact of such …

Letting "Privates" Be Private: Toward A Right Of Gender Selfdetermination, Samuel E. Bartos

Cardozo Journal of Equal Rights & Social Justice

The note examines the contradictory landscape of transgender jurisprudence, particularly focusing on the legal struggles of transgender individuals to achieve recognition of their gender identity. It highlights the Kansas Supreme Court's decision in In the Matter of the Estate of Marshall G. Gardiner, which denied legal recognition of a transgender individual's marriage, contrasted with more progressive rulings in other jurisdictions. The analysis underscores the need for a consistent and inclusive legal framework to address the rights of transgender individuals, emphasizing the potential for future Supreme Court intervention to establish uniform standards.

Privacy, Authenticity, & Equality: The Moral And Legal Case For The Right To Homosexual Marriage, Jeffrey L. Johnson

Florida A & M University Law Review

No abstract provided.

Them That Has, Gets, Daria Roithmayr

Publications

No abstract provided.

“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard

NYLS Law Review

No abstract provided.

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

Smoke-Free State Psychiatric Facility Grounds: Is Legislation Necessary And Appropriate To Remove Tobacco From These Treatment Settings?, Maureen Hackett M.D.

NYLS Law Review

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

Chi Iota Colony Of Alpha Epsilon Pi Fraternity V. City University Of New York, Clinton N. Daggan

NYLS Law Review

No abstract provided.

Government Data Mining: The Need For A Legal Framework, Fred H. Cate

Articles by Maurer Faculty

The article examines the government's growing appetite for collecting personal data. Often justified on the basis of protecting national security, government data mining programs sweep up data collected through hundreds of regulatory and administrative programs, and combine them with huge datasets obtained from industry. The result is an aggregation of personal data - the "digital footprints" of individual lives - never before seen. These data warehouses are then used to determine who can work and participate in Social Security programs, who can board airplanes and enter government buildings, and who is likely to pose a threat in the future, even …

The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache

Scholarly Articles in Law Reviews & Journals

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero

Faculty Scholarship

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Publications

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller

Faculty Scholarship

In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had …

Alternative State Remedies In Constitutional Torts, John F. Preis

Law Faculty Publications

In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …

Racial Adjudication, Andrew M. Carlon

BYU Law Review

No abstract provided.

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

All Faculty Scholarship

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

Suspension And The Extrajudicial Constitution, Trevor W. Morrison

Cornell Law Faculty Publications

What happens when Congress suspends the writ of habeas corpus? Everyone agrees that suspending habeas makes that particular - and particularly important - judicial remedy unavailable for those detained by the government. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, including Justice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes.

This Article answers no. I previously offered that same answer in a symposium essay; …

Rendition To Torture: The Case Of Maher Arar: Hearing Before The H. Comm. On Foreign Affairs,, 110th Cong., Oct. 18, 2007 (Statement Of David D. Cole, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when …

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

Articles

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

The Story Of San Antonio Independent School Dist. V. Rodriguez: School Finance, Local Control, And Constitutional Limits, Michael Heise

Cornell Law Faculty Publications

Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system …

Public School Students' Religious Speech And Viewpoint Discrimination, Kristi L. Bowman

West Virginia Law Review

No abstract provided.