Similar Journals
|
William and Mary Law Review
Number of Followers: 5  Open Access journalISSN (Print) 0043-5589 - ISSN (Online) 2374-8524 Published by College of William and Mary  [5 journals]
|
- Justice Alito's Laundry List: Highlights from Appendix C of Bostock
and a Roadmap for LGBTQ+ Legal Advocates
Authors: Peter Quinn
Abstract: After a brief background on Bostock [v. Clayton County] in Part I, the bulk of this Note seeks to examine Justice Alito’s Bostock dissent and its potential future usefulness for LGBTQ+ advocates. Part II will analyze Justice Alito’s dissent and Appendix C, arguing that his concerns about Bostock’s consequences across other federal statutes fall into three primary categories of usefulness. The remaining Parts will survey these categories, including the “small potatoes” in Part III, the “blockbusters” in Part IV, and the “under-the-radar” areas in Part V. Part V takes particular notice of potential applications of Bostock’s pro-LGBTQ+ approach to federal statutes that may fall outside of policy areas that typically engender advocates’ attention. It is this author’s hope that such a categorization can help scholars and advocates accurately gauge the impact of Bostock and the veracity of Justice Alito’s complaints. More importantly, however, this categorization will allow advocates to prioritize policy areas that have been largely overlooked as important potential battlegrounds to further expand LGBTQ+ legal protections post-Bostock.This abstract has been taken from the author's introduction.
PubDate: Fri, 10 Mar 2023 15:16:42 PST
- Qualified Knowledge: The Case for Considering Actual Knowledge in
Qualified Immunity Jurisprudence As It Relates to the First Amendment
Right to Record
Authors: Carly LaForge
Abstract: This Note argues that this particular finding of the Frasier court is both pragmatically and philosophically problematic. By design, the qualified immunity doctrine seeks to shield police officers from civil rights lawsuits. However, prioritizing assumed knowledge over actual knowledge in determining what qualifies as a clearly established constitutional right harms the citizens that law enforcement officers have sworn to protect and serve. While traditional delineations of clearly established rights have involved appeals to precedent, public policy concerns are also important considerations in the qualified immunity analysis. In this way, Frasier is especially concerning in that it prioritizes the total defense of police officers over the deterrence of civil rights violations. Only Supreme Court intervention can rectify this particular problem. Namely, the Court should reverse the Tenth Circuit’s Frasier judgment and similar judgments in other circuits and find that officers who knowingly violate the constitutional right of private citizens to record public police interactions are not entitled to qualified immunity.This Note proceeds in Part I with a historical outline of the qualified immunity doctrine for law enforcement officers. Part II then evaluates how courts have applied the qualified immunity doctrine in cases concerning arrests of private citizens for filming police activities. Part III outlines Frasier v. Evans and offers a new standard for incorporating actual knowledge into the existing qualified immunity analysis. Finally, Part IV addresses related policy implications and responds to potential counterarguments.This abstract has been taken from the author's introduction.
PubDate: Fri, 10 Mar 2023 15:16:39 PST
- Stigma in the Statute: When the Language of the Law Injures
Authors: Stacey A. Tovino
Abstract: Jurists frequently consider the extent to which a writer’s or speaker’s harmful statements may be actionable under the law. But what should be done when the law itself contains harmful language' Consider the case of individuals with alcohol use disorder (AUD). Hundreds of federal and state statutes refer to these individuals as “addicts,” “abusers,” “alcoholics,” “drunkards,” “inebriates,” and “intemperates.” These statutes exist notwithstanding research showing that these words provoke negative thinking by others, including thinking that individuals with AUD are more deserving of punishment and less deserving of treatment. These laws persist in the face of research showing that these words increase the affected individual’s sense of shame and anxiety and decrease the individual’s likelihood of seeking and remaining in treatment. These laws remain on the books despite research and case law showing that these words reinforce structural, public, and self-stigma associated with AUD. Inspired by the Author’s former clients, many of whom had substance use disorders, this Article develops an original, alcohol-related language taxonomy that challenges the continued use of injurious statutory language. If enacted, the proposals set forth in this Article will bridge the fields of law and medicine and reduce the stigma associated with mental health conditions.
PubDate: Fri, 10 Mar 2023 15:16:36 PST
- Political Risk Management
Authors: Omari Scott Simmons
Abstract: The COVID-19 pandemic and social unrest have focused considerable corporate attention on political risk. The disruptions to company operations are voluminous and diverse: entertainment and hospitality industry closures, airline industry cancellations, eviction moratoriums in residential real estate, international trade interruptions, manufacturing supply shortages, employee vaccination mandates, and ride-hailing service restrictions. Enterprise risk management (ERM) is the mechanism through which boards and their respective firms can manage complex political risks. In the current business climate, more companies should emphasize and integrate political risk oversight in their ERM programs. Although neglecting political risk may not trigger legal liability from regulators or courts, it can cause significant financial and reputational loss to the company. Contemporary corporate boards should not operate with political blinders; they must remain politically sensitive. Politics should not be avoided but managed in a nuanced way pursuant to effective board oversight of ERM. Board political sensitivity is an issue of risk management rather than “wokeness.” Companies must contend with courts of law and the court of public opinion, each with its own distinct rules. Missteps in the latter may injure the corporation more seriously than unfavorable judgments in the former. The failure to manage political risk is not in the best interests of the corporation. This Article adds to the legal literature in three important areas. First, it situates political risk within the contemporary ERM discussion. Second, it re-examines how corporations engage with politics in the contemporary context. Finally, it contributes to theories that posit the large modern corporation as a quasi-public institution and argues, with some caveats, that it functions as a quasi-political institution, mandating more robust board oversight of political risks.
PubDate: Fri, 10 Mar 2023 15:16:34 PST
- Civil Rights Without Representation
Authors: Joanna C. Schwartz
Abstract: Although much recent attention has been paid to qualified immunity, the biggest threat to civil rights enforcement is actually the lack of lawyers able and willing to represent people whose constitutional rights have been violated. There are small, tight-knit communities of civil rights lawyers with expertise and passion in the cities of the Great Migration, but few civil rights attorneys practice outside those urban areas. Limits on attorneys’ ability to recover fees mean that even attorneys willing to take civil rights cases will have financial incentives to decline meritorious cases if they would be expensive to litigate or if the expected damage awards are low.People who bring civil rights cases pro se are far less likely to succeed than those with lawyers. Most pro se cases are dismissed for failure to plead cognizable claims in their complaints or for failing to prosecute their claims—bases for dismissal that do not necessarily reflect on their underlying merits.When a meritorious pro se civil rights case is dismissed, not only the named plaintiff is harmed. Losses in these cases have negative downstream effects as well—frustrating future plaintiffs’ ability to overcome qualified immunity, prove municipal liability, and establish entitlement to injunctive relief.Civil rights enforcement depends on lawyers’ willingness to bring cases on behalf of people whose rights have been violated. Unless and until more lawyers are willing to take these cases, abolishing qualified immunity and other proposed reforms will not achieve their intended aims. Any plan to restore the power and potential of § 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them.
PubDate: Fri, 10 Mar 2023 15:16:31 PST
- The Factor/Element Distinction in Antitrust Litigation
Authors: Christopher R. Leslie
Abstract: Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.Several federal courts, however, have improperly converted some aspects of antitrust law’s factor test into an element test, which raises the plaintiff’s evidentiary burdens in a way that protects price-fixing conspiracies from antitrust liability. Too often, judges have suggested that the absence of a particular plus factor should constitute evidence that no conspiracy exists or ever existed. These plus factors include: concentrated market structure, cartel enforcement mechanisms, stable market shares, intercompetitor communications, and simultaneity of price increases.This Article performs a three-part analysis for each of these plus factors. First, it describes why the plus factor is probative of collusion and, thus, a plus factor. Second, it illustrates how some courts have distorted the plus factor’s probative value by treating its absence as evidence that no collusion has taken place. Third, using empirical examples and economic theory, it explains why price-fixing conspiracies can exist and thrive even without generating evidence of the particular plus factor that some courts have treated as quasi-elemental.The plus-factor framework for proving collusion through circumstantial evidence only works if judges properly apply, understand, and interpret plus factors. When courts treat an absence of evidence as evidence of absence, they craft a roadmap for price-fixing cartels to harm consumers while evading antitrust liability. This undermines all the goals of antitrust: compensating victims of price fixing, disgorging ill-gotten gains, and deterring future violations.
PubDate: Fri, 10 Mar 2023 15:16:28 PST
- Table of Contents (v. 64, no. 3)
PubDate: Fri, 10 Mar 2023 15:16:26 PST
- Another Bite at the Apple or the Same Bite' Characterizing Habeas
Petitions on Appeal as Pending Instead of Fully Adjudicated
Authors: Gregory Winder
Abstract: [...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus in the United States and allowable under even the restrictive approach of the AEDPA. Finally, this Note advocates for Supreme Court intervention on this issue despite the Court’s reluctance up to this point.Part I of this Note provides a background on the right of habeas corpus in American history and discusses the changes and developments accompanying the AEDPA since its passage in 1996. Part II discusses the Supreme Court’s rulings in Gonzalez v. Crosby and Banister v. Davis, with particular focus placed on the Court’s analysis of Rule 60(b) and 59(e) motions. Part III uses cases in the Second, Third, and Ninth Circuit Courts to illustrate federal courts’ various approaches to appeals after trial courts have adjudicated the merits of initial habeas petitions. Part IV puts forth various arguments as to why these motions should be allowed and why the Supreme Court should intervene on this issue. It also proposes a test that the Supreme Court should utilize when coming to a decision, which utilizes the approaches currently used by the circuit courts as well as related approaches to other procedural obstacles of the AEDPA.This abstract has been adapted from the author's introduction.
PubDate: Mon, 12 Dec 2022 09:56:02 PST
- Incitement and Social Media-Algorithmic Speech: Redefining Brandenburg for
a Different Kind of Speech
Authors: Anna Rhoads
Abstract: Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should tweak the incitement standard for social media-algorithmic speech by altering Brandenburg’s intent and imminence requirements.Part I of this Note provides relevant history and background about the rationales behind and values of free speech and the current incitement standard. Part II presents the problem at hand, which is that social media-algorithmic speech is uniquely likely to produce lawless action while the Brandenburg standard does not and cannot address this problem sufficiently. Part III discusses a solution to this problem, arguing that the Court should modify the Brandenburg standard as applied to social media-algorithmic speech by altering the intent requirement and relaxing or removing the imminence requirement. Part III also addresses potential counterarguments.This abstract has been taken from the author's introduction.
PubDate: Mon, 12 Dec 2022 09:56:00 PST
- A World Without Roe: The Constitutional Future of Unwanted Pregnancy
Authors: Julie C. Suk
Abstract: With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the State, without properly valuing these contributions.This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings- and Thirteenth Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Global experience also points to the importance of incrementally establishing reasonable, expanded definitions of medical necessity exceptions to abortion bans. Such avenues for reestablishing abortion access, as well as public support for pregnancy and parenting, imagine a broader world of reproductive justice than the one defined by Roe.
PubDate: Mon, 12 Dec 2022 09:55:57 PST
- The Future of College Sports After Alston: Reforming the NCAA via
Conditional Antitrust Immunity
Authors: Nathaniel Grow
Abstract: In June 2021, a unanimous U.S. Supreme Court issued its eagerly anticipated decision in National Collegiate Athletic Association v. Alston, ruling for the first time that NCAA rules governing student-athlete eligibility are subject to full scrutiny under federal antitrust law. Although the immediate impact of the Alston decision was rather modest—merely requiring the NCAA to allow its schools to compete by offering prospective players education-related benefits such as laptop computers and stipends for future graduate-level study—the Court hinted that it was prepared to extend the logic of this ruling much further, calling into question the legality of the NCAA’s entire model of “amateur” intercollegiate athletics. As a result, many suspect that it is only a matter of time before the judiciary requires the NCAA to introduce some form of “pay-for-play” to college sports.This setback for the NCAA coincided with another monumental change to the college sports landscape in the summer of 2021. Within days of its decisive loss at the Supreme Court, the NCAA—for the first time—decided to allow student-athletes to retain their collegiate eligibility despite having monetized their so-called “name, image, and likeness” (NIL) rights by signing endorsement contracts with third-party companies. The association did not do so willingly, however, but only after its hand was forced by the twenty-seven different states that had enacted legislation prohibiting universities within their jurisdiction from denying their college athletes this right.In response to these events—and the Supreme Court’s admonishment in particular—the NCAA and its membership began to rethink the association’s supervisory role over intercollegiate athletics. Most notably, the NCAA recently ratified a significant overhaul of its organizational constitution in January 2022. This has set the stage for a meaningful decentralization of the industry, with increased decision-making authority likely to be delegated back to individual universities and conferences.Although such a response to the events of 2021 is more than understandable given the association’s potential legal liability post- Alston, the NCAA’s restructuring nevertheless threatens to exacerbate several undesirable trends in intercollegiate athletics. Indeed, the uncommon industrial organization of U.S. intercollegiate athletics has created atypical economic incentives that have already resulted in remarkably elevated levels of deficit spending, a high degree of competitive imbalance on the playing field, and insufficient protection of student-athletes’ education and medical well-being. Unfortunately, because the college sports industry faces an unusual legal impediment that will hinder its ability to successfully adjust to increased commercialization and competition between schools—namely, an inability to collectively bargain with its players on an industry-wide basis—the coming decentralization is likely to only further exacerbate these problems.Therefore, this Article asserts that Congress should intervene to help chart the course for the future of U.S. intercollegiate athletics. Specifically, this Article makes the case for granting the NCAA and its member institutions a limited and conditional antitrust exemption, proposing two alternative models that would give the industry the power to regulate itself while simultaneously imposing meaningful reforms on the NCAA to ensure that its governance model better advances the interests of its players in the future.
PubDate: Mon, 12 Dec 2022 09:55:55 PST
- Proving Copying
Authors: Shyamkrishna Balganesh et al.
Abstract: Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access based on the level of similarity, and vice-versa. While analytically sound, the inverse ratio rule has proven to be a persistent source of confusion among some courts, most prominently the Ninth Circuit, causing some to misapprehend the very nature of the inquiry into copying as well as the manner in which circumstantial evidence operates. This Article explains how the inverse ratio rule emanates from crucial insights about the manner in which circumstantial evidence operates, wherein multiple inferences are combined to enhance the probative value of evidence that is inconclusive in isolation. This flexible formula builds on the notion of a combined narrative that is a hallmark of all circumstantial evidence. The Article unpacks the theoretical and normative logic behind the inverse ratio rule to show how it is essential to circumstantial proof of copying, reveals how purported rejections of the doctrine by courts have been driven by a basic misunderstanding of the manner in which circumstantial inferences interact, and concludes by drawing broader insights about the interplay of copyright and evidence law.
PubDate: Mon, 12 Dec 2022 09:55:53 PST
- Table of Contents (v. 64, no. 2)
PubDate: Mon, 12 Dec 2022 09:55:50 PST
- Ford v. Where Are We': The Revival of the Sliding Scale to Govern the
Supreme Court's New "Relating To" Personal Jurisdiction
Authors: Zois Manaris
Abstract: This Note proposes a test to govern “relating to” specific jurisdiction, a variation on a theme to those familiar with the doctrine: a “sliding scale” approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases to serve as a check on the sliding scale. Part I of this Note explains the “sliding scale” approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note’s proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this Note’s proposed approach to hypothetical fact patterns falling within the traditional general-specific personal jurisdiction gray area that raise questions that could mark the next developments of “relating to” jurisdiction doctrine.This abstract has been taken from the author's introduction.
PubDate: Mon, 28 Nov 2022 11:54:33 PST
- Preempting the States and Protecting the Charities: A Case for
Nonprofit-Exempting Federal Action in Consumer Data Privacy
Authors: Sarah Fisher
Abstract: This Note argues that Congress should use its Commerce Clause power to pass a consumer data privacy measure that (1) preempts state law and (2) explicitly exempts 501(c)(3) organizations from compliance. Such preemptive action with a narrow 501(c)(3) carve-out would avoid the potential harm of exempting too broad a group of nonprofit entities while ensuring charitable organizations’ continued existence, would be more protective of both the individual privacy right and 501(c)(3) existence than merely adjusting the revenue dollar threshold at which entities must comply, and would properly balance the individual right to control personal data with the societal good served by the existence of 501(c)(3) charitable organizations.Part I of this Note elaborates on the relationship between 501(c)(3) organizations and personal data and expands on the compliance difficulties faced by (and the collective societal good of) (c)(3) groups. Part II reviews the four major existing privacy law measures—the GDPR, the CCPA, the CPA, and the VCDPA—and analyzes the scope of each measure’s reach as it pertains to 501(c)(3) charities. Part III of this Note makes the case for federal preemptory action in a sweeping consumer privacy rights measure that trumps the existing patchwork of state law and exempts 501(c)(3) organizations from compliance. Finally, Part IV of this Note considers and responds to potential Tenth Amendment and state expertise counterarguments that could be raised in opposition to federal preemptory action in this arena.This abstract has been taken from the author's introduction.
PubDate: Mon, 28 Nov 2022 11:54:31 PST
- Charting a Course to Conserve 30% of Freshwaters by 2030
Authors: Sandra B. Zellmer
Abstract: One of President Biden’s earliest executive orders established an ambitious national goal to conserve at least 30 percent of U.S. lands, waters, and oceans by 2030. The Biden administration is not alone; over 100 countries support this goal as a means of combating climate change and slowing the pace of species extinction, both of which are accelerating at a rate that is unprecedented in history.Despite its vow to pursue a wide-sweeping, all-of-government approach, Biden’s 30 by 30 initiative overlooks a critical component of the conservation goal—it pays virtually no attention to freshwater. Freshwater ecosystems are among the most endangered in the world due to diminished streamflows, pollution, wetlands destruction, nonnative species’ invasions, and hydrological modifications. Yet in the United States, there are extreme institutional barriers to holistic watershed management. Complexity, controversy, and conflict arise from fragmentation and long-entrenched interests, making reforms especially difficult.This Article explores federal freshwater conservation law, along with a handful of potential reforms that could advance the 30 by 30 objective without requiring statutory revisions. It covers provisions of existing federal laws that protect the quality, quantity, and integrity of freshwater ecosystems, specifically the Clean Water Act, the Wild & Scenic Rivers Act, federal hydropower, reclamation, and flood control statutes, and the Endangered Species Act. It also identifies ways these laws could be implemented more effectively to conserve 30 percent of the nation’s freshwater resources by 2030, focusing primarily on the agencies’ ability to utilize statutory planning requirements to promote biodiversity and climate resilience.
PubDate: Mon, 28 Nov 2022 11:54:28 PST
- Religious Liberty Interest Convergence
Authors: Asma T. Uddin
Abstract: Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. Bell used interest convergence theory to analyze judicial decision-making during the civil rights movement. Other scholars have built upon Bell’s original thesis about Black people’s rights by extending interest convergence to other racial minorities. This Article is the first to consider the implications of interest convergence not just for religious minorities but specifically the status of religious minorities in today’s politicized religious liberty landscape. In so doing, it aims to formulate a theory of “religious liberty interest convergence.”Specifically, this Article applies Bell’s framework to two recent Supreme Court cases. It uses interest convergence theory to explain the rulings against Muslim claimants in Trump v. Hawaii (2018) and for Muslim claimants in Tanzin v. Tanvir (2020).The Article concludes by assessing the relevance of religious liberty interest convergence to political coalition-building. In both the judicial and coalition-building contexts, relying on self-interest helps create openings where openings may not otherwise be possible.
PubDate: Mon, 28 Nov 2022 11:54:26 PST
- Equal Dignity, Colorblindness, and the Future of Affirmative Action Beyond
Grutter v. Bollinger
Authors: Thomas P. Crocker
Abstract: In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of race-conscious decision-making should remain constitutionally permissible. The Court’s equal dignity jurisprudence in the line of cases running from Lawrence v. Texas to Obergefell v. Hodges, rooted similarly in the Court’s existing affirmative action jurisprudence, provides a basis for reconsidering the goal of affirmative action under an alternative combined due process and equality framework. Under this jurisprudence, in order to respect the equal dignity of individual persons, state actors must not dominate or deny central aspects of an individual’s personal identity. The law must grant the equality of individual persons’ liberty to define and present their personal identities free from government actions that would enshrine forms of disrespect as a matter of law. But because race can be a constitutive feature of a person’s identity, mandating colorblindness may deny a person’s equal dignity to be considered holistically for who they are.A cornerstone of the Court’s anti-affirmative-action reasoning, through both dissents and majorities, is a principle of colorblindness rooted in a conception of procedural individualism. The Constitution, we are told, protects individuals, not groups. But as this Article demonstrates, taking individual persons seriously—as the Court urges—has the unexpected implication that government institutions cannot be foreclosed from taking a person’s racial identity seriously as well. The Court’s interpretive and ideological commitment to individual persons as the bearers of constitutional rights entails a textually based, constitutional commitment to persons who can be seen holistically in ways that do not deny their racial identity. Thus, as this Article argues, equal dignity introduces a complication for colorblindness and creates an alternative constitutional framework applicable even if the Court were to abandon the central holding of Grutter. Equal dignity would allow government actors to consider race when giving applicants affirmative consideration of their personal identities in light of their social structures and histories. As this Article introduces it, “affirmative consideration” is a process of considering the personal identities of applicants holistically in their best light, including their personal histories and constitutive features, which necessarily might include their race. To the extent that society continues to make race relevant to the lives of persons through explicit and implicit institutional practices, then to fail to consider an individual as a person for whom race has mattered under colorblindness would be to deny a relevant aspect of what makes them a unique person, and thus, would deny them the equal dignity that due process of law and equality protect. This Article explains and defends this alternative constitutional basis for reorienting antidiscrimination law according to equal dignity principles that makes possible the continuation of a modified form of race-conscious university admissions programs, even if the Court were to sunset Grutter’s diversity rationale. Reorienting constitutional doctrine under equal dignity would foreclose a strict commitment to colorblind constitutionalism, permit affirmative consideration of complete persons, and make possible a new understanding of race consciousness in official decision-making.
PubDate: Mon, 28 Nov 2022 11:54:23 PST
- Table of Contents (v. 64, no. 1)
PubDate: Mon, 28 Nov 2022 11:54:20 PST
- Goss v. Lopez as a Vehicle to Examine Due Process Protection Issues with
Alternative Schools
Authors: Ashton Tuck Scott
Abstract: Circuits are split on whether students are entitled to procedural protections before school officials may force them into alternative schools. This Note argues that students facing an involuntary transfer to a disciplinary alternative school are entitled to procedural protections under the Due Process Clause of the Fourteenth Amendment. Part I explains the trend toward the use of disciplinary alternative schools and the social and educational harms that these schools exacerbate. Part II explores the current circuit split around the procedural due process rights of students facing involuntary transfer to an alternative school. Part III argues that courts should expand the Supreme Court's holding in Goss v. Lopez to ensure students receive due process protections before being involuntarily transferred to disciplinary alternative schools. Part IV addresses counterarguments and concludes that, by extending procedural protections to students facing involuntary alternative school transfers, courts can protect those most vulnerable from harmful disciplinary actions.This abstract has been adapted from the author's introduction.
PubDate: Mon, 06 Jun 2022 12:11:31 PDT
