Texas Journal on Civil Liberties & Civil Rights

Texas Journal on Civil Liberties & Civil Rights is an academic journal focusing on Civil Liberties & Civil Rights

Articles

Vol. 18, No. 1, Fall

Texas Journal on Civil Liberties & Civil Rights Letter from the Editor
Dear Reader,Civil liberties and civil rights issues are at the forefront of our nation's political dialogue. The struggle for marriage equality continues. The right to vote is under assault. Comprehensive immigration reform may soon become a reality,...
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The Other 99% of the Expressive Conduct Doctrine: The Occupy Wall Street Movement and the Importance of Recognizing the Contribution of Conduct to Speech
I. INTRODUCTION. 2II. THE OCCUPY WALL STREET MOVEMENT. 9A. The Message of Occupation. 9B. Eviction and Legal Action. 12III. THE EXPRESSIVE CONDUCT DOCTRINE. 13A. A Burning Desire to Express Oneself: United States v. O'Brien. 14B. What is Speech, Anyway?....
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The Norman/Friedman Principle: Equal Rights to Information and Technology Access
I. INTRODUCTION. 48II. THE DIGITAL DIVIDE AND THE INFORMATION AGE. 50A. Disability: The Basic Legal Framework. 50B. Being Disabled In a Functional World. 51C. Disabilities in an Inaccessible Age. 53D. The Hastening Pace of Technological Advancements....
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Equitable Access: Examining Information Asymmetry in Reverse Redlining Claims through Critical Race Theory
I. Introduction 101II. Reverse-Redlining Claims 103A. Evidence that Minority Borrowers Suffered More, the Fair Housing Act, and Reverse-Redlining Plaintiffs 103B. Varying Tests Adopted for Stating a Reverse-Redlining Claim 105C. Recommendations for Judges...
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Finding the Sweet Spot: Deference in Redistricting
I. Introduction 122II. Competing Ideals 124A. Merits of Deference 125B. Concerns About Deference 126III. overarching considerations 128A. When Does the Deference Question Arise? 128B. Upham v. Seamon and Perry v. Perez 130C. Should All Legislative Policies...
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Vol. 17, No. 2, Spring

Letter from the Editor
Dear Reader,This issue's selections illustrate the continuing imperative for lawyers who are ethically committed to preserving core rights and liberties - whether in schools, adult homes, county jails, or markets - to dedicate themselves to our enduring...
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Challenges to Institutionalization: The Definition of "Institution" and the Future of Olmstead Litigation
Jacobus tenBroek Disability Law SymposiumI. INTRODUCTION .......... 144II. CHARACTERISTICS OF FACILITIES HISTORICALLY TARGETED BY DEINSTITUTIONALIZATION LITIGATION .......... 146A. State Mental Hospitals .......... 147B. Nursing Homes v 148C. Intermediate...
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Classroom to Courtroom: How Texas's Unique School-Based Ticketing Practice Turns Students into Criminals, Burdens Courts, and Violates the Eighth Amendment
I. INTRODUCTION ........................ 182II. LOOKING BACK: TEXAS'S TICKETING PROBLEM .............. 184A. The Development of the Ticketing Problem ............. 184B. School-Based Policing ................................. 185C. School Resource Officers...
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Texas's New Payday Lending Regulations: Effective Debiasing Entails More Than the Right Message
I. INTRODUCTION ..........212II. Interested Groups ..........215A. Consumers ..........215B. Payday Lenders ..........216C. Government Actors ..........217III. JUSTIFICATIONS FOR REGULATION ..........217A. Liberty ..........217B. Market Failure ..........2191....
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"Hands-Off" the Solicitor General: Florence V. Board of Chosen Freeholders and the Supreme Court's Deference in Prison Cases
I. Introduction ....................252II.The Supreme Court's "Hands-Off" Approach to Prison Administration as Deference to the Solicitor General.................... 256A. Bell v. Wolfish and the Revival of the "Hands-Off' Approach.......................
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Vol. 17, No. 1, Fall

Letter from the Editor
Dear Reader,Civil liberties observers witnessed worldwide upheaval in 2011. Information leaks triggered criminal enforcement efforts at home; the information leaked ignited revolutions abroad. When protests reached our country in the form of Occupy Wall...
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Creating Disability Rights: The Challenge for Disabled Americans*
Jacobus tenBroekDisability Law SymposiumAlthough the Fourteenth Amendment to the Constitution of the United States declares that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws,"1 and although Section...
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Parents with Disabilities in the United States: Prevalence, Perspectives, and a Proposal for Legislative Change to Protect the Right to Family in the Disability Community
Jacobus tenBroekDisability Law SymposiumI. INTRODUCTION ....................10II. The Law and History .......................11A. Dependency Law .....................11B. Family Law ..................12C. The History of Parenting in Communities of Disability...
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Tender Offer Taking: Using Game Theory to Ensure That Governments Efficiently and Fairly Exercise Eminent Domain
I. INTRODUCTION ..........................96II. THE PROBLEM THAT EMINENT DOMAIN WAS DESIGNED TO SOLVE ............................97III. THE PROBLEMS THAT EMINENT DOMAIN INTRODUCES ...........98A. No Compensation for Subjective Value ................98B....
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Different but Equal? Inequalities in the Workplace, the Nature-Based Narrative, and the Title VII Prohibition on the Masculinization of the "Ideal Worker"
I. INTRODUCTION 117II. THE NATURE-BASED NARRATIVE: HOW OUR GENDERED CULTURE COLLIDES WITH SCIENCE TO JUSTIFY SEX INEQUALITY IN THE WORKPLACE 122III. WHAT WERE THEY THINKING?: THE NATURE-BASED NARRATIVE AS IT WAS USED TO JUSTIFY THE SUBORDINATION OF AFRICAN-AMERICANS...
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Reprisal Revisited: Gross V. FBL Financial Services, Inc. and the End of Mixed-Motive Title VII Retaliation
I. Introduction ....................................................44II. A Brief History of Retaliation................................................. 45III. A Brief History of Mixed-Motive .................................................50A. Title...
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Vol. 16, No. 2, Spring

Amending Christian Legal Society V. Martinez: Protecting Expressive Association as an Independent Right in a Limited Public Forum
AbstractWith limited acknowledgment of its dramatically different approach to expressive association, the Supreme Court in Christian Legal Society v. Martinez upheld a public university's policy requiring all student organizations to give voting membership...
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Disparate Impact Is Not Unconstitutional
I. INTRODUCTION ........................................................................... 171II. HISTORY OF THE TERM "DISCRIMINATION" .............................. 173III. TITLE VII .......................................................................................
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Eliminating the Use of Restraint and Seclusion against Students with Disabilities
I. INTRODUCTION ............................................................................... 190A. General Overview ............................................................... 191II. USE OF RESTRAINT AND SECLUSION .............................................
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Bucking Grutter: Why Critical Mass Should Be Thrown off the Affirmative-Action Horse
I. INTRODUCTION ........................................................................... 233II. THE THEORY OF CRITICAL MASS ............................................... 235A. Cases Invoking Critical Mass ................................................
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Vol. 16, No. 1, Fall

Letter from the Editors
Dear Reader,Thank you for your patronage. This academic year marks the sixteenth year of the Texas Journal on Civil Liberties & Civil Rights, formerly the Texas Forum on Civil Liberties & Civil Rights. The Journal was formed in 1992 by a group...
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Arab Americans, Affirmative Action, and a Quest for Racial Identity
I. INTRODUCTION ............................................................................... 101II. THE WORST OF BOTH WORLDS ...................................................... 103A. Post 9-11 Racism, Hate, and Discrimination .........................
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A New Look at Section 504 and the ADA in Special Education Cases
AbstractSchool districts are finding fewer children eligible for services under the Individuals with Disabilities Education Act (IDEA). At the same time Congress has expanded the number of children who are protected by section 504 of the Rehabilitation...
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Congress Needs to Repair the Court's Damage to § 1983
Today it is not unusual for a § 1983 plaintiff to establish a violation of the U.S. Constitution and resulting injuries, yet be denied damages because of the Supreme Court's misinterpretation of the 1871 statute. This anomaly is the result of several...
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Race and Civil Asset Forfeiture: A Disparate Impact Hypothesis
I. INTRODUCTION: "HIGHWAY ROBBERY" IN TENAHA, TEXAS ...... 78II. CIVIL ASSET FORFEITURE LAW ................................................... 80A. Civil Asset Forfeiture Law: History and Today ................... 80B. Legal Challenges to Civil Asset...
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Vol. 15, No. 2, Spring

Why March to A Uniform Beat? Adding Honesty and Proportionality to the Tune of Federal Sentencing
I. INTRODUCTIONThis Article fills a gap in current scholarship concerning the Federal Sentencing Guidelines ("Guidelines") by bringing together many sentencing concerns and refocusing them on the Guidelines themselves. Since United States v. Booker,1...
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Title VII's Transgender Trajectory: An Analysis of Whether Transgender People Are a Protected Class under the Term "Sex" and Practical Implications of Inclusion
I. INTRODUCTIONIn February of 1964, the Civil Rights Act was on the cusp of passing in the House of Representatives.1 Representative Howard Smith, a staunch opponent of the bill, was losing ground, and it looked as though equal employment opportunity...
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Do Public Officials Leave Their Constitutional Rights at the Ballot Box? A Commentary on the Texas Open Meetings Act
I. INTRODUCTIONProfound questions of constitutional law arise when an individual right is pitted against an undeniable societal interest. The Texas Open Meetings Act (TOMA)1 is a prime example. By prohibiting quorums of governmental bodies from discussing...
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The Executive Summary: Working within the Framework of the Texas Clemency Procedures
I. INTRODUCTIONIn 1998, Juanita Gonzalez, a member of the Texas Board of Pardons and Paroles ("the Board"), submitted her vote to deny Joseph Stanley Faulder clemency less than two hours after receiving his petition.1 This incident and a subsequent 1998...
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Adoption by Same-Sex Couples: Public Policy Issues in Texas Law & Practice
I. INTRODUCTIONLike those of many other states, the laws of Texas are unclear as to whether same-sex couples may adopt children; they lack both an express permission and an express denial of such adoptions.1 Texas is representative of many states whose...
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Vol. 15, No. 1, Fall

Future of Disability Rights Advocacy and "The Right to Live in the World"
ClosingJacobus tenBroekDisability Law SymposiumApril 17, 2009I. INTRODUCTIONAs we approach the twentieth anniversary of the Americans with Disabilities Act (ADA),1 the disability community finds itself facing new challenges and opportunities. The ADA...
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Keeping Stalkers at Bay in Texas
[The stalking makes me] mad, hurt, hate - I feel hate, I feel rage, I feel disgust. I feel like screaming. I just get aggravated. I don't feel like a real person, I feel like a robot. I feel like I have to speak, and I have to look, and I have to dress,...
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Learning on Razor's Edge: Re-Examining the Constitutionality of School District Policies Restricting Educationally Disruptive Student Speech
I. INTRODUCTIONIn Davis v. Monroe County Board of Education, the Supreme Court dramatically altered the landscape of public education by granting students a private right of action against their school for student-onstudent sexual harassment under Title...
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The United Nations Convention on the Rights of Persons with Disabilities: Toward a New International Politics of Disability
Jacobus tenBroekDisability Law SymposiumApril 17, 2009I. INTRODUCTIONThe United Nations Convention on the Rights of Persons with Disabilities ("the Convention")1 was formally adopted by the United Nations General Assembly in December 2006 and opened...
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Vol. 14, No. 2, Spring

When Money Is Tight, Is Strict Scrutiny Loose?: Cost Sensitivity as a Compelling Governmental Interest under the Religious Land Use and Institutionalized Persons Act of 2000
I. INTRODUCTIONWhat happens when prison inmates in state custody think that prison officials are violating their First Amendment right to the free exercise of religion? For example, when the inmate is an observant Jew or Muslim and his jailors give him...
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Nowhere to Hide: Overbreadth and Other Constitutional Challenges Facing the Current Designation Regime
I. INTRODUCTIONModern American jurisprudence, though ostensibly based on common law, looks little like the idealized version of its ancestor prevalent in seventeenth-century England. Industrialization, globalization, and now digitalization have bred...
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The Trouble with Putting All of Your Eggs in One Basket: Using a Property Rights Model to Resolve Disputes over Cryopreserved Pre-Embryos
I. INTRODUCTION"[S]cientists were so pre-occupied with whether or not they could, that they didn't stop and think if they should."1 This quote highlights the all-too-common tug of war between science and morality. However, we no longer grapple with this...
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Check Your Identity-Baggage at the Firm Door: The Ethical Difficulty of Zealous Advocacy in Bias-Ridden Courtrooms
I. INTRODUCTION1It is almost a maxim among lawyers that, as Henry Brougham, Lord Chancellor, famously put it, "an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client."2 It is common to view the...
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Vol. 14, No. 1, Fall

Analysis: The Religious Viewpoints Antidiscrimination Act
I. INTRODUCTIONTexas Governor Rick Perry signed into law the Religious Viewpoints Antidiscrimination Act, also called the Schoolchildren's Religious Liberties Act, on June 8, 2007.1 According to the Author's Statement of Intent, the Act "clarifies the...
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"If You Don't Aim to Please, Don't Dress to Tease" and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer
'Tis education forms the common mind, Just as the twig is bent, the tree's incln'd.-Alexander Pope[I]t is important to remember that no constitutional guarantees, whether those of women's equality or of free and fair elections, are safe or are worth...
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The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students' First Amendment Rights
I. INTRODUCTIONThe free speech rights of public university students are in a precarious position. Since the mid-1980s, public universities across the country have routinely, and often unapologetically, restricted their students' expression. In order...
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After Pics: Making the Case for Socioeconomic Integration
"Brown v. Board was never just about sitting next to white children-it was about sharing the same resources they had access to."-Cheryl Brown HendersonDaughter of the lead plaintiff in Brown v. Board of Education.1I. INTRODUCTIONIn June 2007 the Supreme...
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Vol. 13, No. 2, Spring

The Ada Amendments Act of 2008
I. INTRODUCTIONOne of us, Chai Feldblum, was actively involved in the drafting and negotiation of the Americans with Disabilities Act (ADA) from 1988 to 1990, and has remained involved in disability rights since that time. Two of us, Kevin Barry and...
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"Through the Wild Cathedral Evening": Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, and the Rights of Persons with Mental Disabilities
Michael Stein and Janet Lord's excellent paper on the relationship between Jacobus tenBroek' s vision and jurisprudence and the United Nations Convention on the Rights of Persons with Disabilities (UN CRD) stands on its own as an important and powerful...
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Strategic Advocacy in Fulfilling the Goals of Disability Policy: Is the Only Question How Full the Glass Is?
In his excellent article assessing the current state of disability law in the United States,1 Professor Robert Dinerstein evaluates the array of federal statutes (including the Americans with Disabilities Act (ADA),2 the Individuals with Disabilities...
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Jacobus Tenbroek Law Symposium Keynote Address
Robert Bork said, '"You can't legislate morality.' Indeed . . . we legislate little else."1John Adams said, "In my many years I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress."2These reflections...
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"The Right to Live in the World": Disability Yesterday, Today, and Tomorrow
I. INTRODUCTIONJacobus tenBroek understood The Right to Live in the World. At the dawn of disability rights advocacy, in 1966, tenBroek argued for a policy of "integrationalism," which called for the full and equal participation in society of persons...
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Jacobus Tenbroek, Participatory Justice, and the Un Convention on the Rights of Persons with Disabilities
INTRODUCTIONWriting with prescience, Professor Jacobus tenBroek eloquently argued mid-century on behalf of participatory justice for individuals with disabilities.1 Nothing "could be more essential to personality, social existence, [and] economic opportunity"...
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Restoring the Ada and Beyond: Disability in the 21st Century
I. INTRODUCTIONPerhaps it was imprudent for me to agree, in response to the request of the symposium organizers, to address the future of disability law. Nobel Prize-winning physicist Neils Bohr supposedly once said that "[p]rediction is very difficult,...
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Vol. 13, No. 1, Fall

Equal Access to Public Education: An Examination of the State Constitutional & Statutory Rights of Nonpublic Students to Participate in Public School Programs on a Part-Time Basis in North Carolina & across the Nation
I. INTRODUCTIONBrenda is a full-time sixth-grader at Charlotte Christian Academy, a private non-denominational school in Michigan. She has her own musical instrument, but the academy does not offer a band course. Brenda 's parents are concerned that...
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Identifying the Identified: The Census, Race, and the Myth of Self-Classification
The Constitution mandates an "actual [e]numeration . .. in such manner as [the Congress] shall by law direct."1 Although it was originally conceived as a tool to apportion taxes and representatives,2 the census has evolved into a fundamental institution...
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Preventing the New Internment: A Security-Sensitive Standard for Equal Protection Claims in the Post-9/11 Era
I. INTRODUCTIONAs intelligence assessments suggest that another major terrorist attack on U.S. soil is inevitable, speculation abounds as to whether the implementation of an emergency measure akin to the internment of Japanese-Americans during World...
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The Often Illusory Protections of "Biology Plus:" on the Supreme Court's Parental Rights Jurisprudence
Over the past several decades, state supreme courts have been forced to analyze the degree to which the United States Constitution protects the parental rights of unwed fathers. Two very different interpretations of the relevant jurisprudence have been...
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Vol. 12, No. 1/2, Fall

The Cruel and Unusual Criminalization of Homelessness: Factoring Individual Accountability into the Proportionality Principle
I. INTRODUCTION: THE PROBLEMIn June 2005, County Judge David L. Denkin struck down the second attempt by the City Commission in Sarasota, Florida to stop homeless individuals from sleeping outdoors.1 The Commission's first attempt, an ordinance prohibiting...
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Guarding the Ivory Tower: The Duty of the University to Defend and Indemnify Faculty Publications
I. INTRODUCTIONUniversities and the public alike are quick to condemn professors who misrepresent facts in their research. When Emory University professor Michael Bellesiles was accused of creating "unprofessional and misleading work" in his book regarding...
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Public Law as a Whole and Normative Duality: Reclaiming Adminstrative Insights in Enforcement Review
INTRODUCTIONA recent ad campaign urged Americans to buckle their seatbelts by warning them to "Click It or Ticket."1 But, theoretically, the penalty could be a lot more severe-consider a campaign entitled "Buckled or Booked." In the 2001 case Atwater...
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Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities
I. INTRODUCTIONTransgender people face pervasive hostility in multiple arenas of their lives. Physical, psychological, and economic violence is leveled upon those whose identities and actions challenge the stability of the male/female binary.1 In numerous...
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The Legality of the NSA Wiretapping Program
In December 2005, the New York Times revealed that the National Security Agency (NSA) was engaged in the warrantless wiretapping of calls involving Americans.1 In the several subsequent lawsuits challenging the wiretapping program,2 the government had...
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Government Effectiveness and Efficiency? the Minority Language Assistance Provisions of the Vra*1
I. INTRODUCTIONThe minority language assistance provisions of the Voting Rights Act (VRA) remove language barriers to voting and help provide limited-English speaking American citizens with a full and meaningful opportunity to cast ballots.2 Despite...
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Privilege through Prayer: Examining Bible-Based Prison Rehabilitation Programs under the Establishment Clause
I. INTRODUCTIONIn early June of 2006, the Federal Bureau of Prisons (FBP) announced that it would suspend plans for Bible-based treatment programs in six prisons.' The announcement came less than a week after a federal judge in Iowa found a prison ministry...
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Vol. 11, No. 2, Spring

Write Separately: Justice Clarence Thomas's "Race Opinions" on the Supreme Court
"Law is something more than merely the preferences of the power elites writ large. The law is a distinct, independent discipline, with certain principles and modes of analysis that yield what we can discern to be correct and incorrect answers to certain...
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Held Hostage: Identity Citizenship of Iranian Americans
If I see someone come in and he's got a diaper on his head and a fan belt around that diaper on his head, that guy needs to be pulled over and checked.- Former U.S. Congressman John Cooksey'I. INTRODUCTIONIn the aftermath of September 11, the federal...
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Tribal Disobedience
I. INTRODUCTIONThe September 11, 2001 attacks on the United States changed life greatly for Americans and for people throughout the world. Following the events of that day ("9/11"), there have been a lot of actions taken - including military action -...
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Vol. 11, No. 1, Fall

The Fair Housing Act and Religious Freedom
Whenever a state or federal law touches upon the subject of religion there is the possibility of conflict with the First Amendment. The First Amendment to the United States Constitution prohibits the government from establishing religion and from interfering...
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"Please Disable the Entire Filter": Why Non-Removable Filters on Public Library Computers Violate the First Amendment
I. INTRODUCTIONOn August 11, 2004, police in Phoenix, Arizona arrested Charlton Glenn Ward, a convicted child molester on parole, on six counts of sexual exploitation of a minor.' During their investigation police officers discovered that Ward possessed...
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Futures Past: Institutionalizing the Re-Examination of Future Dangerousness in Texas Prior to Execution
"I am sorry. I really am. You, Brian's sister, thanks for your love - it meant a lot. Shone - I hope he finds peace. I am sorry I destroyed you all's life. Thank you for forgiving me. To the moon and back. I love you all." - Last Words of James Vernon...
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NRA = No Rational Argument? How the National Rifle Association Exploits Public Irrationality
I. INTRODUCTION: ARMING THE IRRATIONALMany Americans responded to the terrorist attacks of September 11, 2001 by purchasing firearms. The Federal Bureau of Investigation reported that it conducted 455,000 more background checks on gun buyers during the...
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Vol. 10, No. 2, Spring

Affirmative Action: More Efficient Than Color Blindness
I. INTRODUCTIONPerhaps more than at any time since its inception, affirmative action has been under attack-in the judiciary, in state governments, and through voter initiatives. While the United States Supreme Court recently upheld the constitutionality...
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Congressional Threats of Removal against Federal Judges
The apparent state of relations [between Congress and the judiciary] is more tense than at any time in my lifetime.1The federal judicial branch has lately become the object of increasing scrutiny and distrust by its legislative counterpart. Congressional...
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Race, Partisanship, and the Voting Rights Act (Vra): African-Americans in Texas from Reconstruction to the Republican Redistricting of 2004
I. INTRODUCTIONUnderstanding the failures of partisan battles during Reconstruction sets a framework to understand the necessity of the Voting Rights Act of 1965 (VRA), and the impact of partisanship upon African-Americans in modern Texas politics after...
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Going to the Chapel and We're Going to Get Married;1 but Will the State Recognize the Marriage?2 the Constitutionality of State Marriage Laws after Lawrence V. Texas3
I. LOVE AND MARRIAGE: INTRODUCTIONIn the summer of 2003, the U.S. Supreme Court handed down its long-awaited opinion in Lawrence v. Texas,4 which explicitly overruled Bowers v. Hardwick.5 In Lawrence, the Court announced that "[t]he State cannot demean...
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Vol. 10, No. 1, Winter

A State's Power to Enter into a Consent Decree That Violates State Law Provisions: What "Findings" of a Federal Violation Are Sufficient to Justify a Consent Decree That Trumps State Law?
In the last forty years federal courts have played a prominent role in reshaping our public institutions. From school desegregation to prisoners' rights, institutional reform in the shape of court judgments has become commonplace.1 While some scholars...
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The Fight for the Right to Fight and the Forgotten Negro Protest Movement: The History of Executive Order 9981 and Its Effect upon Brown V. Board of Education and Beyond
I. INTRODUCTION"The colored man in uniform is expected by the War Department to develop a high morale in a community that offers him nothing but humiliation and mistreatment. . . . The War Department has failed to secure to the colored soldier protection...
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"Writing Their Faith into the Laws of the Land:"1 Jehovah's Witnesses and the Supreme Court's Battle for the Meaning of the Free Exercise Clause, 1939-1945
The Supreme Court recently upheld the free exercise rights of a religious group to canvas door-to-door without first obtaining a permit.2 The Jehovah's Witnesses asserted that their right to practice their faith through door-to-door contacts overrode...
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The Extension of Disparate Impact Theory to White Men: What the Civil Rights Act of 1991 Plainly Does Not Mean
"Great challenges still face religious, racial, and ethnic minorities and women in our society. Human nature has not yet advanced to the point at which individuals are measured by their humanity and not their gender or skin color. Achieving such a society...
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Vol. 9, No. 2, Spring

The Unprotected Workforce: Why Title VII Must Apply to Workfare Participants
I. INTRODUCTIONBecause Congress has not explicitly granted protection from gender discrimination under Title VII of the 1964 Civil Rights Act1 to welfare recipients in workfare programs, these workfare participants are often forced to work in positions...
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Do Prisoners Have a Right under the Eighth Amendment to HIV Testing on Demand?
I. INTRODUCTIONThis paper examines whether prisoners have a right to human immunodeficiency virus (HIV) testing on demand, as part of the Eighth Amendment requirement that prison officials provide prisoners with adequate medical care.1 There is a dearth...
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From Bakke to Grutter and Beyond: Asian Americans and Diversity in America
I. INTRODUCTIONAt a recent speech to a group of Chicago lawyers delivered at a luncheon held in his honor, United States Supreme Court justice John Paul Stevens spoke about his thoughts on the recent Court decisions concerning the University of Michigan...
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"Additional Evidence" under the Individuals with Disabilities Education Act: The Need for Rigor
The Individuals with Disabilities Education Act (IDEA),1 originally passed by Congress in 1975 as the Education of All Handicapped Children Act, was enacted to "ensure that all handicapped children have available to them a free appropriate public education"...
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Vol. 8, No. 2, Fall

International Attention to the Death Penalty: Texas as a Lightning Rod
John Quigley*Although foreign governments have shown concern about capital punishment in the United States for some years, only in 2001 did they raise it to a high-priority foreign affairs matter. That summer, when President Bush made his first visit...
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The Failed Failsafe: The Politics of Executive Clemency
I. INTRODUCTIONThis Article discusses the role of executive clemency in light of the current political environment. Attending to the political aspects of the capital litigation process gives insight into the trends in the use of executive clemency. Focusing...
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Vol. 8, No. 1, Spring

A Moving Violation? Hypercriminalized Spaces and Fortuitous Presence in Drug Free School Zones
I. IntroductionOver the last thirty years, both the federal government and a majority of states have enacted statutes that prohibit certain types of conduct involving illicit drugs in or near schools, school buses, or other youth or family-related facilities...
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Providing Students with the Protection They Deserve: Amending the Office of Civil Rights' Guidance or Title IX to Protect Students from Peer Sexual Harassment in Schools
I. IntroductionA female was asked to describe oral sex, stabbed in the hand, called a "whore," hit, grabbed in the buttocks, and backed up against a wall where two males held her arms and started yanking off her shirt as a male, who stated that he was...
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The Civil Rights of "Others": Antiterrorism, the Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society
I. IntroductionI woke up early on the morning of September 11, 2001, 5:45 AM PST, to get some studying in before class, and as I logged onto the Internet, I felt the terror that had already consumed the Eastern part of the United States. I turned on...
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The Dialogic of Federalism in Federal Indian Law and the Rehnquist Court: The Need for Coherence and Integration
Although Congress is said to have "plenary power" in Indian Affairs,1 much of federal Indian law is still dictated from the judicial bench through federal common law. While Congress asserted its plenary power in a rather heavy handed manner between the...
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Vol. 9, No. 1, Winter

School Safety V. Free Speech: The Seesawing Tolerance Standards for Students' Sexual and Violent Expressions
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. "-Benjamin Franklin1I. A BRIEF LEGAL HISTORY OF STUDENT FREE EXPRESSIONThe Supreme Court has long sustained laws that treat minors as an...
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Moralism, the Fear of Social Chaos: The Dissent in Lawrence and the Antidotes of Vermont and Brown
I. INTRODUCTIONIn Lawrence v. Texas, the United States Supreme Court held that the Due Process Clause forbade Texas from criminalizing adult, consensual homosexual sodomy,1 thereby overruling Bowers v. Hardwick2 In his Lawrence dissent, Justice Scalia...
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The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy
"Constitutional rights should not be frittered away by arguments so technical and unsubstantial. The Constitution deals with substance, not shadows."1"We must never forget that it is a constitution we are expounding."2I. INTRODUCTION: THE LAWYER AND...
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The Laws on Providing Material Support to Terrorist Organizations: The Erosion of Constitutional Rights or a Legitimate Tool for Preventing Terrorism?
IntroductionOn December 4, 2001, federal agents raided the offices of the Holy Land Foundation for Relief and Development, arrested the organization's officers, and froze $5 million worth of assets.1 Ten days later on December 14, 2001, the Global Relief...
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