Texas Forum on Civil Liberties & Civil Rights

Texas Forum on Civil Liberties & Civil Rights is a magazine focusing on Law


Vol. 7, No. 2, Fall

When an Anatomical "Gift" Isn't a Gift: Presumed Consent Laws as an Affront to Religious Liberty
I. Presumed Consent in TexasA. Texas statutes broadly authorize medical examiners to harvest body parts without consent.B. Modern definitions of death that encompass brain death result in increasingly invasive organ harvesting under presumed consent...
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Predicting Future Supreme Court Decisions on Race and the Fourth Amendment
IntroductionOliver Wendell Holmes's theory of legal realism, which contends that written law is patently incomplete and compels wide judicial discretion in interpretation and application,1 has been called the "What the Judge Ate for Breakfast" theory...
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Circumventing Rodriguez: Can Plaintiffs Use the Equal Protection Clause to Challenge School Finance Disparities Caused by Inequitable State Distribution Policies?
IntroductionIn 1973, the Supreme Court ruled in San Antonio Independent School District v. Rodriguez that funding disparities among school districts caused by local property taxation did not violate the Equal Protection Clause.1 Applying the rational...
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Reasonable Accommodations as Constitutional Obligations
Individuals with disabilities historically have not had equal access to education, employment, and community services. Those with disabilities require reasonable accommodations to gain access to many areas of public life. In Garrett v. University of...
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Affirmative Action in Education: The Trust and Honesty Perspective
IntroductionAffirmative action is one of the most controversial topics for constitutional scholars, perhaps for American society at large as well. Education seems to be the favorite context for such discussions. The debate over whether it should be constitutionally...
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Vol. 7, No. 1, Spring

Leave No Child Behind: Normative Proposals to Link Educational Adequacy Claims and High Stakes Assessment Due Process Challenges
If you ask the children to attend school in conditions where plaster is crumbling, the roof is leaking and classes are being held in unlikely places because of overcrowded conditions, that says something to the child about how you diminish the value...
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Vote Swapping and Free Speech: Voice, Politics, and Choice
I. Introduction The advent of the Internet has created a world of new opportunities for commerce and communication. The Internet is virtually revolutionizing the way people live. Today e-mail is more common than paper mail, a buyer can shop online without...
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Achieving Greater Inter-Local Equity in Financing Municipal Services: What We Can Learn from School Finance Litigation
I. Introduction In scholarly examinations of urban deterioration and middle-class flight to the suburbs, the proposed solutions almost always incorporate a call for greater regionalization-a more even distribution of burdens and resources over the metropolitan...
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From Racial Politics to Political Race: Lani Guinier and Gerald Torres's the Miner's Canary
Although a familiar metaphor, the title The Miner's Canary originates from a specific source. In his treatise on Indian Law, Felix Cohen claimed the status of Native Americans as a marker of the state of American politics and society: "Like the miner's...
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Vol. 6, No. 2, Winter

Forming the Historic Fifth Circuit: The Einsenhower Years
Historical Essay In the decade after Brown v. Board of Education was decided, no court played a more critical role in effectuating its mandate than the United States Court of Appeals for the Fifth Circuit. Until 1981 when the Eleventh Circuit was created,...
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Romer V. Evans and the Amendment 2 Controversy: The Rhetoric and Reality of Sexual Orientation Discrimination in America
The law, after all, is meant to express our values and our aspirations for our society. -Senator Joe Lieberman1 Foreword Discrimination based on sexual orientation has been a fact of American social and political life for much of the country's history....
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Doubting America's Sacred Duopoly: Disestablishment Theory and the Two-Party System
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their...
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The Consitutional Standard for Zoning Cases under the Texas Religious Freedom Restoration Act
I. Introduction A. Vignette The scene could be anywhere in Texas. John and Sally Smith and their two children live in a suburban ranch-style house. The neighborhood has plenty of kids but is quiet overall. The Smiths decide to host a Wednesday evening...
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Federal Authority to Enforce Consent Decrees against State Officials
I. Introduction A vast majority of federal litigation concludes with party-- negotiated settlement agreements. In cases involving state governmental entities, these settlement agreements are often implemented with court-- entered consent decrees. The...
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Vol. 6, No. 1, Summer

Unfinished Agenda: The Need for Civil Right Litigation to Address Race Discrimination and Inequalities in Health Care Delivery
I. Introduction From Central Harlem to rural Alabama, poor communities of color are exposed to great health hazards and experience high incidences of many chronic and acute health conditions, but have access to relatively few health services. The consequences...
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Taking God out of the Hospital: Requiring Parents to Seek Medical Care for Their Children Regardless of Religious Belief
I. Introduction Since 1975, at least one hundred and sixty five children have died from curable illnesses when their parents refused medical treatment in accordance with religious strictures. Two-year old Robyn Twitchell and seven-year old Amy Hermanson...
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Constitutional "Religion" a Survey of First Amendment Definitions of Religion
Newly-elected President George W Bush erected a new hurdle in the Supreme Court's Religion Clause adjudication. Fulfilling his vision ofAmerica, he created a program through which faith-based organizations may receive federal monies for doing public...
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Fatal in Fact? Federal Courts' Application of Strict Scrutiny to Racial Preferences in Public Education
I. Introduction In 1995, the Supreme Court declared in Adarand v. Pena1 that all federal and state racial classifications were subject to strict scrutiny.2 Along with City of Richmond v. Croson, Adarand settled the debate over the proper judicial scrutiny...
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Vol. 5, No. 2, Summer

The Probative Values and Pitfalls of Drug Courier Profiles as Probabilistic Evidence
I. Introduction Suppose that Jones arrives at the Los Angeles airport in a taxicab. He pays entirely in cash for a one-way ticket to Detroit, from where he arrived earlier in the day. He does not check any luggage, opting to carry two shoulder bags with...
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The United States Border: A Barrier to Cultural Survival
The pain and joy of the borderlands--perhaps no greater or lesser than the emotions stirred by living anywhere contradictions abound, cultures clash and meld, and life is lived on an edge--come from a wound that will not heal and yet is forever healing....
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The Conscience of a Constitutionalist: A Recipe for Living?
LIVING THE BILL OF RIGHTS: How TO BE AN AUTHENTIC AMERICAN, by Nat Hentoff. Harper Collins, 1998. Pp. 254. A constitutional scholar, no originalist to be sure, recently observed, "the meaning of the Constitution in general, and the Bill of Rights in...
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Vol. 5, No. 1, Winter

Horizontal Federalism Inches Along: New Jersey's Experiment in State Constitutionalism and Consent Searches Finally Finds Company
I. Introduction The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." The U.S. Supreme Court has held that "[i]t is well settled under...
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"Working" with the ADA's "Regarded As" Definition of a Disability
The Americans with Disabilities Act of 1990 prohibits discrimination against and mandates accommodations for individuals with disabilities. As a threshold matter, the Act requires the plaintiff to demonstrate that she is an individual with a disability;...
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No Physical Harm, No Asylum: Denying a Safe Haven for Refugees
I. Introduction Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lite my lamp beside the golden door.' This noble sentiment has greeted...
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Race, American Values, and Colorblind Justice
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