Constitutional Law Commons^™

Skrmetti And The Problem Of Incidental Intent, Martin J. Katz

Sturm College of Law: Faculty Scholarship

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

Toys As Evidence, Randall K. Johnson

Faculty Works

This Essay asks and answers a single question, which was posed during a recent symposium at the National Museum of Toys & Miniatures. Could the study of revealed preferences, which is the idea that observed behaviors are the best indicator of one’s beliefs, improve our collective understanding about what constitutes unlawful discrimination in certain U.S. markets? A possible answer, which is informed by the Brown v. Board of Education decision, is the study of revealed preferences may improve our collective understanding for three reasons.

One reason is the study of revealed preferences provides a window into how some producers and …

Balancing The Scales Between The Evolution Of Affirmative Action Policies And The Equal Protection Clause, Jesicca Patel

Journal of Race, Gender, and Ethnicity

This article argues that the Supreme Court’s ruling ending affirmative action was correct. Affirmative action does not solve the underlying issues of racial inequality and systemic oppression. Instead, affirmative action undermines the success of minorities and inflames racial tensions. This article is divided into Five Parts. The first part examines U.S. Supreme Court precedent addressing the Court’s decisions in upholding affirmative action policies in educational settings before Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The second part discusses Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and why the Supreme Court …

Skrmetti Beyond Scrutiny, Kate Redburn

Faculty Scholarship

In United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care. For the first time, the Court considered a fundamental question in civil rights law: How does the Fourteenth Amendment regard transgender people? The Court gave little guidance. It did not sort out principles for deciding when anti-transgender discrimination classifies by sex, nor whether transgender people are a suspect class. Instead, the Court held that “[i]n the medical context, the mere use of sex-based language does not sweep a statute within the reach of …

Queer And Present Danger: Reconceiving Arkansas’S Artificial Insemination Laws To Protect Lgbtq Families, Chacey Schoeppel Wilcox

University of Arkansas at Little Rock Law Review

No abstract provided.

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

Criminalization Of Immigration Through State Enforcement: Lessons From Texas’S Latest Efforts To Criminalize Immigration Through Senate Bill 4, A. Regenold Bright

University of Arkansas at Little Rock Law Review

No abstract provided.

Equal Protection As A Measure Of Competing Interests In Welfare Litigation, John G. Richardson

Maine Law Review

Presently legal attacks on welfare programs focus upon the basic theory of the program, its definitions of need and obligation, and dissatisfaction with aspects of daily administration. Because these attacks seek to invalidate state action and federal forums are usually sought, conventional constitutional arguments of due process and equal protection are adapted to the peculiar issues posed by welfare cases. These attacks in substance allege that the state has so failed to support a needy person that its actions are fundamentally unfair and unacceptable. Equal protection has been raised often in welfare cases and some courts have granted relief based …

Constitutional Law—Arkansas’S Unconstitutional Gun Restrictions For The Formerly Mentally Ill, Michael Frost

University of Arkansas at Little Rock Law Review

No abstract provided.

The American Oligarchy, Match Dawson

Faculty Articles

What was designed as a constitutional republic, bound by self-rule and democratic accountability, has become an oligarchy camouflaged by the illusion of public sovereignty. The corporate architects of this new world order did not seize power through conquest or force: they legislated, litigated, and purchased it into existence. Oligarchic rule is more than a simple political crisis. It is a democratic one. Just as prior generations have been called upon to preserve the republic against threats to liberty, we now face our own defining challenge and must decide whether to accept a government auctioned to the highest bidder or reclaim …

The Sovereign Acre, Match Dawson

Faculty Articles

What if the next constitutional crisis is not declared from a presidential podium but tyranny forged into a deed? Not a contested election. Not a rogue legislature. Not even a runaway court. This time, it is quieter—with a deed signed and title passed, a new sovereign is crowned in private ink. Across the country, billionaire land grabs are redrawing the map of municipal governance itself. As wealthy elites and corporate oligarchs carve out private enclaves—from the privatized contract city of Sandy Springs, Georgia, to the unsettling governance of The Woodlands, Texas—we bear witness to public sovereignty giving way to oligarchic …

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

Overturning Sffa V. Harvard, David Hinojosa, Chavis Jones

The Scholar: St. Mary's Law Review on Race and Social Justice

One of the first lessons law students learn is the importance of stare decisis. It not only serves as a tool to learn how to apply settled law to argument and persuasive writing, but foundationally stare decisis helps promote the public’s trust, confidence, and faith in the judicial system. Thus, when the Supreme Court issued its 6-3 opinion in 2023 in Students for Fair Admissions v. Harvard/University of North Carolina (“Harvard”), most onlookers viewed the decision as being the final nail in the coffin for affirmative action in higher education admissions. However, we—the authors—are among the minority.

In …

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Disentangling Race And Politics: Racial Gerrymandering In South Carolina's First Congressional District, Matthew Poliakoff

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2020 Census, South Carolina's Republican-controlled legislature redrew the boundaries for Congressional District 1, historically anchored in Charleston County. After thirty-thousand African American voters were moved out of District 1 and into District 6, the South Carolina State Conference of the NAACP challenged the new map as an unconstitutional racial gerrymander. A three-judge district court panel agreed, finding that race predominated above other factors in the map redraw. On appeal, the question remains not only whether the state legislature used race above other factors in its map design, but also how plaintiffs are expected to prove these claims in …

The Witch-Hunt For Spies - A Critique Of The China Initiative And National Security’S Outsized Influence In Equal Protection Analysis, Winni Zhang

Washington and Lee Journal of Civil Rights and Social Justice

The U.S. Government has increased its focus on Chinese espionage in the last decade in a randomized and unpredictable way. Primarily targeting Chinese scientists and academics, the “China Initiative” has resulted in widespread targeting of individuals based on their race, ethnicity, and national origin. The program was formally terminated and said to now be a part of a broader approach to nation-state threats. However, the outcomes and effect of the economic espionage charges in the last 15 years has greatly skewed towards prosecuting Chinese individuals irrespective of the name of the program. While protections typically exist in the law to …

Protecting "Sincerely Held Religious Beliefs": Lessons From Mississippi Hb 1523, Lindsay Krout Roberts

MC Law Review

The United States Supreme Court's revolutionary ruling in Obergefell v. Hodges, which guaranteed marriage equality for homosexual couples in every state, gave life to a new challenge in the area of free exercise of religion: to what extent should persons with religious objections to same-sex marriages be forced to participate in them? Should a Christian baker be legally required to bake a wedding cake for a homosexual marriage to which he or she objects? Must a county clerk with religious objections to homosexual marriage sign a marriage license for a same-sex couple?

In an attempt to pre-empt these types of …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth

University of Cincinnati Law Review

No abstract provided.

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

After Mccleskey, Robert L. Tsai

Faculty Scholarship

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate's argument that significant racial disparities in the administration of Georgia's capital punishment laws violated the Fourteenth Amendment's Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state 's capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling's incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

Articles

In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

Scholarly Works

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Codifying Antisemitism, Mark Goldfeder

Scholarly Works

Antisemitic harassment and discrimination are unlawful in many contexts, but without a standard definition of what 'antisemitism' includes, that idea is almost meaningless. This has led to an equal protection problem for members of the Jewish community, which is why states across the country have started to pass laws adopting the International Holocaust Remembrance Alliance ("IHRA") Definition of antisemitism for use in clarifying the application of existing legal protections for Jewish people from crime and discrimination. Thus far, the bills that have passed have for the most part been overwhelmingly bipartisan, but there have been minor pockets of pushback in …

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …

Affirmative Action Tested: The Constitutionality Of “Landscape”, Eric James Seltzer

St. John's Law Review

(Excerpt)

In August 2019, the College Board announced it was launching a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decisions.” In August 2019, the College Board announced it was launching “Landscape,” a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decision.” Landscape collects and organizes data into three categories—basic high school data, such as school locale, test score comparison, and high school and neighborhood indicators—that offers insight into high schools and neighborhoods. Among these indicators are quintessential measures of socioeconomic status, including college …

Lochner's Revenge: Tiered Scrutiny And The Acceptance Of Judicial Subjectivity, Phillip J. Closius

University of Cincinnati Law Review

No abstract provided.

Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson

Articles & Chapters

This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies …