Fourteenth Amendment Commons^™

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 …

Foreword, Michelle E. Mazzola

Journal of Race, Gender, and Equality

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 Equality

No abstract provided.

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 Equality

No abstract provided.

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

Journal of Race, Gender, and Equality

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 …

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 …

"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 …

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 …

Transgender Student-Athletes Punch Back: A Legal Analysis Of States' "Fairness In Women's Sports Act" And How It Violates The Fourteenth Amendment And Title Ix, Daniel Jimenez

University of San Francisco Law Review

No abstract provided.

Malicious Prosecution As Undue Process: A Fourteenth Amendment Theory Of Malicious Prosecution, Timothy Tymkovich, Hayley Stillwell

Faculty Articles

Section 1983 is not itself a source of constitutional rights, but is instead merely a vehicle to vindicate constitutional rights that independently exist. But since the Supreme Court advised in dictum that actions pursuant to § 1983 should be read against the background of tort liability, § 1983 actions based on malicious prosecution have sparked disagreement over where, if anywhere, this cause of action fits within the Constitution. Most recently, the Supreme Court determined that malicious prosecution finds its constitutional home in the Fourth Amendment, so § 1983 claims require a showing of both a Fourth Amendment violation and the …

Is Partisan Gerrymandering Unconstitutional? Rethinking Rucho V. Common Cause, Barnett J. Harris

University of San Francisco Law Review

No abstract provided.

Property Prohibitions: Why Criminalizing Prostitution Violates Constitutional Guarantees, James J. Bernstein

University of San Francisco Law Review

No abstract provided.

Denial Of Housing To African Americans: Post-Slavery Reflections From A Civil Rights Advocate, Elaine Gross

Touro Law Review

In this article, I draw on two decades of experience as a civil rights advocate to reflect on the denial of housing to African Americans in post-slavery America. I do so as Founder and President of the civil rights organization, ERASE Racism. I undertake historical research and share insights from my own experience to create and reflect upon six lessons related to understanding the systematic discrimination and segregation of African Americans. The lessons encompass: (1) the role of the federal government, (2) the role of municipal governments, (3) White supremacy ideation and actions, (4) legislative advocacy and legal actions, (5) …

This Aggression Will Not Stand, Schools: The Need For Federal Legislation Protecting Bullied Students With Disabilities, Russell A. Vogel

Touro Law Review

A boy with Autism comes home from school, visibly upset. His parents ask him why, and he responds that nobody in his class likes him. To his parents’ horror, they learn that their son’s teacher encouraged a class discussion about why they dislike their son. When the boy’s parents complain to the school about this issue, school administrators brush it aside. The next day, students sitting near the boy move their desks away from him and taunt him for the way he acts every time he tries to socialize with them. The boy then refuses to go to school each …

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Identifying The Plessy Remainder: State Exploitation Of Private Discriminatory-Impact Actions, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education in the U.S. is arguably more racially segregated now than it was in 1954, when the U.S. Supreme Court declared in Brown v. Board of Education "that in the field of public education the doctrine of separate but equal' has no place." Although scholars may differ in the extent they believe that racial integration might be necessary for educational equality, most agree that educational segregation, whether imposed by law, socioeconomics, or happenstance, is not likely to reverse in any meaningful way in the near future.

In the absence of a recognized federal right to education, federal-court- supervised school …

#Freebritney: The Importance Of Public Access To The Guardianship System, Cecily D'Amore

Cardozo Arts & Entertainment Law Journal

The note examines the systemic issues in the U.S. guardianship system, highlighted by Britney Spears' highly publicized conservatorship case, and advocates for increased transparency and accountability. It argues that while guardianship laws are designed to protect vulnerable individuals, cases like Spears' reveal gaps in oversight, inconsistent public access to records, and the need for less restrictive alternatives. The note proposes reforms, including enhanced public access to guardianship case information and the creation of a centralized database, to address these shortcomings and prevent abuse.

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

The 'Impractical And Anomalous' Consequences Of Territorial Inequity, Jayanth K. Krishnan

Articles by Maurer Faculty

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful …

Intentional Discrimination And Haredi Jews, Michael Lewyn

Scholarly Works

No abstract provided.

Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais

Touro Law Review

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …

You Have The Right To Remain Silent, And It Can And Will Be Used Against You: Addressing Post-Arrest Pre-Miranda Silence, Maria P. Hirakis

Touro Law Review

The right to remain silent has long been recognized by the Supreme Court as requiring a high degree of protection. Since Miranda v. Arizona was decided in 1966, procedural safeguards have been put in place to inform individuals of this right upon arrest. Yet, a gray area exists when it comes to the use of an individual's silence post-arrest. It may surprise some that a point in time exists when an individual has not yet been read their Miranda rights post-arrest. Several circuit courts have taken the position that any silence that follows arrest but precedes the reading of Miranda …

20 Ways To Fight Housing Discrimination, Ian Wilder

Touro Law Review

When looking at the continuing size of the problem of discrimination it is easy to be paralyzed into inaction by the sweeping scope of the undertaking. A good remedy is to find actions that an individual can take to move toward justice. Though Dr. King is often quoted as stating that “the arc of the moral universe is long, but it bends toward justice,” that bend in the arc is caused by legions of activists pulling the future toward justice. Robert Kennedy noted in his opposition to apartheid in South Africa that “a million different centers of energy and daring …

Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo

Touro Law Review

Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …

163 U.S. 537 Supreme Court Of The United States: Plessy V. Ferguson No. 210, Trina Jones

Faculty Scholarship

No abstract provided.

Felon Re-Enfranchisement And The Problem Of “Lost” Rights, Josh Feinzig

Faculty Scholarship

By conditioning the restoration of political rights on financial repayment, states have prevented hundreds of thousands of citizens with felony convictions from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating restoration as an exercise of legislative grace to nonmembers of the political community. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to an overlooked first-order question: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position assumes that disenfranchisement casts …

The Insular Cases Run Amok: Against Constitutional Exceptionalism In The Territories, Christina D. Ponsa-Kraus

Faculty Scholarship

The Insular Cases have been enjoying an improbable — and unfortunate — renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 — Puerto Rico, the Philippines, and Guam — “belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the …

One Vote, Two Votes, Three Votes, Four: How Ranked Choice Voting Burdens Voting Rights And More, Brandon Bryer

University of Cincinnati Law Review

No abstract provided.