Equal Protection Challenge Research Articles

Wardlow After Black Lives Matter: Using a Protest Movement to Establish a Colorable Equal Protection Challenge to Supreme Court Precedent

Wardlow After Black Lives Matter: Using a Protest Movement to Establish a Colorable Equal Protection Challenge to Supreme Court Precedent

Show Me the Numbers: Due Process and Equal Protection Challenges to the Use of Risk Assessment Algorithms in the Pretrial Context

Show Me the Numbers: Due Process and Equal Protection Challenges to the Use of Risk Assessment Algorithms in the Pretrial Context

Scrutinizing the Bathroom Binary: Equal Protection Theories for Nonbinary Students

Over the past decade, transgender students have challenged discriminatory school bathroom policies under the Equal Protection Clause with varying success. But another group of students, facing similar discrimination, has yet to see its day in court. Like their transgender peers, nonbinary students often lack access to gender-appropriate restrooms at school. Many K–12 schools offer only “boys” and “girls” restrooms, ignoring the needs of students who identify as neither boys nor girls, as both of those genders, or as something else entirely. Forced to use sex-segregated bathrooms (or no bathroom at all), nonbinary students suffer adverse health, safety, and educational outcomes. To illustrate pathways to relief, this Note provides an inventory of equal protection claims nonbinary students can make to challenge discriminatory bathroom policies. Each theory—alleging unconstitutional discrimination on the basis of sex, transgender status, or nonbinary status—is promising and limited in its own respect. Independently or together, these theories can support a viable equal protection challenge that triggers heightened scrutiny.

Legality of Explicit Racial Discrimination in the Distribution of Lifesaving COVID-19 Treatments

In 2021, the Federal Drug Administration released a statement advocating for race and ethnicity to be used in rationing lifesaving COVID-19 treatments. By January 2022, three states had implemented policies explicitly prioritizing treatments based on race, which resulted in multiple legal challenges. This Article analyzes the uphill battle such policies would face in an equal protection challenge. It also rebuts the attempt to analogize these policies to the legally acceptable practice of racial preferences in college admissions. Finally, nonlegal, pragmatic consequences are considered, such as how the policy risks disproportionately favoring the wealthy reduces trust in future government pronouncements regarding COVID-19, perpetuates harmful stereotypes about racial inferiority, breeds racial resentment, and causes unnecessary delays in treatment.
 The racially disparate outcomes from the COVID-19 pandemic illuminate numerous background factors that disadvantage minority groups. However, the implementation of racial preferences in lifesaving treatments is not the answer. As demonstrated in this Article, such policies spectacularly fail judicial scrutiny. Furthermore, the nonlegal, pragmatic considerations establish that such a policy does far more harm than good. These considerations are of paramount importance not only for the current COVID-19 crisis but also for future pandemics and the rationing of other limited medical resources, such as organ transplants and intensive care unit beds.

The relevance of purpose in constitutional equal protection challenges to executive action

ABSTRACT Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the connection between the differentiation and the broad purpose for which power was conferred upon the authority to perform the challenged action; and (3) a generalized assessment of the action’s rationality independent of purpose. This paper will critically evaluate each of these possibilities. It will argue that a specific purpose approach (namely (1)) is to be preferred, and that such an approach should be substantiated through a structured proportionality framework.

Making Mandates Last: Increasing Female Representation on Corporate Boards in the U.S.

A lack of female representation on corporate boards has plagued our country for decades. Until a few years ago, there was not a single state or federal regulation that required corporations to fill board seats with female directors. Instead, the federal government talked around the issue. In 2010, the SEC established an optional reporting structure for corporations to communicate their hiring practices, but did little else. With no national plan in place, many states implemented legislation that urged corporations to hire female directors. But this legislation barely moved the needle. The country needed a mandate. And in 2018, California implemented the first one – SB 826. SB 826 required each publicly held corporation with executive offices in California to place specific numbers of women on its board, depending on the board’s size. The private sector quickly followed, with institutions such as Goldman Sachs and Nasdaq announcing that in order to receive funding or list on its exchange, corporations must have at least one female director. After SB 826 was enacted, the number of women on California boards more than doubled. And many states are now using SB 826 as a model to enact similar bills. But while SB 826 saw few legal challenges overall, in May 2022, it was overturned under California’s Equal Protection Clause. Even if this decision is appealed, states looking to follow California’s lead should be cautious of another threat to such a mandate’s longevity – the internal affairs doctrine. The internal affairs doctrine is a conflict of laws principle that establishes that the state law of incorporation governs a company’s internal affairs. More than half of the corporations in the U.S. are incorporated in Delaware, leaving state statutes highly vulnerable to being rendered ineffective. It is clear that mandates work. But when mandates are put in place, they should stay in place. In this Note, I propose two alternative solutions [to the female representation problem] that would increase female participation on corporate boards. First, even if Equal Protection challenges ultimately fail, rather than relying on sporadic state statutes, stakeholders should pressure Delaware to enact a corporate code that would mandate female representation on corporate boards. Second, to circumvent Equal Protection challenges altogether, the private sector should expand its mandates to consider the number of female directors in relation to the size of each board, similarly to SB 826.

Racial Preferences in COVID-19 Vaccination: Legal and Practical Implications

The severity of COVID-19 and the limited supply of vaccines poses a pressing question: Who should receive priority for the vaccine? Many experts support the controversial plan to prioritize black and Hispanic people. For justification they point to the highly disparate health outcomes minorities experience from COVID-19 that are rooted in historical racial injustice. However, such racial classifications implicate the Equal Protection Clause of the Fourteenth Amendment.This Article analyzes the potential outcome of such an equal protection challenge. It explains why strict scrutiny would be the controlling legal standard even though the issue has never been adjudicated by the Supreme Court in a health care context. Next, it considers how the existence of alternative vaccine distribution policies violate the narrowly tailored requirement. It considers the analogous case law of affirmative action in college admissions, in which the use of racial preferences is well established. And it considers alternative vaccine distribution plans that do not utilize racial preferences and how even they are susceptible to legal challenges.This Article further addresses pragmatic implications that would tangentially affect the legal determinations. These implications include potential counterproductive results of racial preferences, such as increased skepticism among the most vulnerable that they are being used as guinea pigs, a stigmatizing effect that could be used by white supremacist groups to promote a perceived martyrdom status, and the dangerous conflation of disparate health outcomes with genetic superiority and inferiority. These issues are considered against the backdrop of a changing Supreme Court, which has shown a willingness to diverge from established precedent regarding racial preferences.

How the Rational Basis Test Protects Policing for Profit

Since the police shooting of Michael Brown in 2014 and the civil unrest that followed, numerous lawsuits have challenged laws that use the government’s ability to impose fines and fees for reasons other than the protection of the public. These challenges have usually raised equal protection challenges to these laws—that is, that the laws punish the poor more harshly than others. The challenges have been unsuccessful, largely because courts examine these laws using “rational basis review,” a standard that is highly deferential to the government and one in which the courts themselves are often required to actively advocate for the government’s position. This article explains these challenges, outlines the critiques of rational basis review, and argues that courts should abandon the use of this standard in cases in which punitive sanctions fall more heavily on the poor than others.

Racially Neutral in Form, Racially Discriminatory in Fact: The Implications for Voting Rights of Giving Disproportionate Racial Impact the Constitutional Importance It Deserves

In two decisions in the mid-1970s, Washington v. Davis and Village of Arlington Heights v. Metropolitan Housing Development Corp., the Supreme Court made clear that proving that a law racially neutral on its face disproportionately disadvantages racial minorities does not establish a violation of the Equal Protection Clause or even create a presumption that such a violation has occurred. Disproportionate racial impact “is not irrelevant,” the Court explained, but “it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.” The key, according to the Court, lies in proving that the law was the product of a racially discriminatory purpose. This Article, part of a Contemporary Issues in Election Law symposium, examines the fundamental inadequacy of the Davis-Arlington Heights approach and the reprieve that it wrongly gives to voter identification laws, purges of voters from registration rolls, and other legal barriers to voting that, though framed in terms that make no mention of race, disproportionately disadvantage racial minorities. Part I explains the lessons of Davis and Arlington Heights for equal protection challenges to facially race-neutral laws that disproportionately disadvantage racial minorities. Drawing on legal barriers to voting for illustrations, Part II maintains that, from the start, the Davis-Arlington Heights approach posed relatively little threat of invalidation to laws disproportionately disadvantaging racial minorities and that the only laws truly threatened by the approach are ones patently and unmistakably the product of bias against racial minorities. Proceeding in a more prescriptive mode, Part III argues that the Davis-Arlington Heights approach to disproportionate racial impact wrongly ignores basic assumptions about the lawmaking process that help explain the Court’s longtime treatment as “suspect” of laws explicitly disadvantaging racial minorities. Part IV then proposes an alternative approach that gives disproportionate racial impact the independent importance it deserves under the Equal Protection Clause. Part V discusses the implications of adopting the proposed approach, with special attention to the implications for prevalent legal impediments to voting. The Article concludes in Part VI by highlighting the practical importance of the proposed approach even if today’s Supreme Court may not appear to be an ideal audience to embrace it.

The New Jim Crow's Equal Protection Potential

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless stops. Though the defendant in Strieff was white, Sotomayor emphasized that “it is no secret that people of color are disproportionate victims of this type of scrutiny,” and mentioned The New Jim Crow in support of her conclusions about the role race plays in suspicionless stops. The New Jim Crow, published in 2010, has sold over 750,000 copies. It describes how the criminal justice system disproportionately targets and incarcerates black men. The book has inspired a popular movement to end mass incarceration and the racial caste system mass incarceration has created. In addition to its appearance in Strieff, The New Jim Crow was cited in United States v. Nesbeth, a well-publicized 2016 sentencing order from the Eastern District of New York in which the court imposed probation instead of the incarceration recommended by the federal sentencing guidelines. The New Jim Crow has also been cited to explain the unfair collateral consequences faced by those convicted of drug crimes, as well as convictions’ disproportionate racial impact. This essay is the first to study The New Jim Crow’s equal protection potential. The New Jim Crow’s presence in federal decisions is reminiscent of the Supreme Court’s citation to social science research in Brown v. Board of Education. This essay considers whether The New Jim Crow sits alongside canonical works of social science research considered by the Supreme Court in cases like Brown. It examines how The New Jim Crow is sometimes cited by the federal courts in passing, as a nod to a work that has infiltrated popular culture, but not always as evidence that influences case outcomes. Noting its appearance in Judge Scheindlin’s orders finding that the NYPD’s use of stop-and-frisk encouraged unconstitutional racial profiling, it questions whether The New Jim Crow could successfully support equal protection claims. It concludes that citations to The New Jim Crow represent soft law, albeit soft law with hard law potential.

The Travel Ban Decision and the Twilight of Judicial Craft: Taking Statutory Context Seriously

The Supreme Court’s deferential decision upholding President Trump’s travel ban muted longtime values of judicial craft. Consider the interaction of constitutional and statutory interpretation. In her dissent, Justice Sotomayor likened the Court’s decision in Trump v. Hawaii to Korematsu v. United States, in which the Court rejected an equal protection challenge to a conviction arising from the Japanese-American internment. Writing for the Hawaii majority, Chief Justice Roberts rejected the comparison. Lost in the clamorous debate about Korematsu’s substantive relevance was an important methodological point: The Hawaii Court could have taken a page from another decision on the internment, Ex Parte Endo, which held that a key component of the internment exceeded the scope of Congress’s delegation to the Executive. Instead, the Hawaii Court coupled a mechanical defense of the travel ban on statutory grounds with an unconvincing analysis of the plaintiffs’ Establishment Clause claim. The prime flaw in the Court’s Establishment Clause analysis was its puzzling reliance on rational basis review decisions, such as City of Cleburne v. Cleburne Independent Living Center, that subjected government action to far more searching means-ends scrutiny than the Hawaii majority was willing to employ. The robust inquiry in those cases contrasted with the Hawaii majority’s blinkered deference. An approach more attuned to judicial craft would have recognized this problem and pivoted toward a statutory holding against the travel ban. Practicing foreign affairs deference, the Hawaii majority instead read an immigration law provision in isolation from its statutory context. That move failed to acknowledge earlier cases such as Kent v. Dulles, which tempered Executive overreach during the Cold War, and more recent administrative law decisions such as King v. Burwell, which examined the overall scheme of the Affordable Care Act to interpret a provision governing health care exchanges. This article critiques Hawaii’s flawed Establishment Clause and statutory analyses, applying the wisdom of Ex Parte Endo, the Cold War cases, and the recent administrative law decisions. That approach also highlights the risks of the Hawaii Court’s undue deference. In method, Hawaii’s deference resembles the Korematsu holding that Justice Robert Jackson’s dissent warned was a “loaded weapon” aiding further executive branch abuses. This article offers a toolkit for defusing that dangerous weapon and making sense of legislative delegation on immigration issues.

How the United States Supreme Court Diminished Constitutional Protections of the Right to Vote and What Congress Can Do About It

Under the United States Constitution, States determine who is allowed to vote in federal and state elections. Historically, the right to vote has been steeped in discrimination. For most of United States history, African Americans, Asian Americans, Native Americans and women have been denied the right to vote. Due to this history of discrimination and because of the importance of the right to vote in a republican democracy, the United States Supreme Court held in the 1960’s and 1970’s that new State restrictions on the right to vote are subject to strict scrutiny review under the equal protection clause of the Fourteenth Amendment. However, in the Supreme Court’s decision in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), a majority of justices applied a balancing test in an equal protection challenge to Indiana’s new requirement that registered voters must present a government-issued photo identification before being allowed to vote. None of the justices in Crawford explained why strict scrutiny review of the new Indiana voting restriction was abandoned in favor of a balancing test review. The balancing test review constituted a much more deferential review of Indiana’s new voting restriction than strict scrutiny review and thereby significantly diminished constitutional protection of the right to vote. The purpose of this article is to describe the historical development of constitutional protections of the right to vote and to explain how the Supreme Court diminished that protection in Crawford. After Crawford, lower federal courts have held that new voter identification requirements that were imposed in several States violated the constitutional rights of certain registered voters. As a result of this unconstitutional pattern of using new voter identification requirements to violate the constitutional rights of some voters, Congress has the authority under the Fourteenth and Fifteenth Amendments to enact legislation that is designed to prevent or remedy unconstitutional restrictions on the right to vote that result from voter identification requirements.

Sally Yates, Ronald Dworkin, and the Best View of the Law

What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, all considered from the standpoint of the community’s political morality. The judge’s interpretation must fit with past legal decisions, but its aim is also to show the community’s legal practices in their best moral light. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this Essay to seek to persuade legal advisors—whether for the government or a private client— that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality but rather to serve as agents of their client. There are several reasons that lawyers should not be Dworkinian interpreters, but this Essay will concentrate on two. First, Dworkin’s jurisprudential vision has always sat uncomfortably with moral pluralism. Dworkin denies that his imaginary Judge Hercules merely imposes his own moral preferences under the guise of offering a legal interpretation. He insists that Hercules instead provides the best account of the community’s political morality. But he has very little to say about the possibility that a faithful reconstruction of the community’s moral principles will potentially establish multiple moral narratives bearing on the same question of legal interpretation. The American experience with immigration shows that, as a political com-munity, we have a remarkable capacity for tolerating both expansive executive power and discrimination on the basis of nationality (and, as demonstrated by the George W. Bush Administration, possibly discrimination on the basis of religion). As a community we also have become increasingly tolerant of strong executive power, but in the immigration context the president’s plenary power goes back more than a century, to the Chinese Exclusion Case. Litigation after the September 11 attacks set some limits on the president’s power, but left in place the deference given to the executive branch by the other branches on matters pertaining to national security. A program called the National Security Entry Exit Registration System (NSEERS), established by the Bush Administration, required the registration, fingerprinting, and questioning of aliens present in the United States from Muslim-majority countries, who were males over the age of sixteen. Courts sustained the registry features of the NSEERS program against due process and equal protection challenges, claims that the program amounted to racial profiling, and arguments regarding lack of statutory authorization for the program. That is not the only story, but it is certainly an aspect of our political morality that sits alongside the antidiscrimination norms articulated in the Constitution and numerous judicial opinions. What is a lawyer modeling herself on Judge Hercules to do when seeking the best view of the law?

The Burger Court and the conflict over the rational basis test: The untold story ofMassachusetts Bd. of Retirement v. Murgia

When discussing the evolution of the rational basis test, few if any commentators would rank Massachusetts Bd. of Retirement v. Murgia with San Antonio Indep. School District v. Rodriguez and Railroad Retirement Bd. v. Fritz and City of Cleburne v. Cleburne Living Center in terms of doctrinal significance. In Murgia, the Court rejected an equal protection challenge to a Massachusetts statute that required police officers to retire at age 50, but made no effort to refine the parameters of rational basis analysis. Instead, the brief per curiam opinion simply noted that the rational basis test was “a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one” and that “perfection in making the necessary classifications is neither possible nor necessary.”In fact, however, the internal deliberations of the Court in Murgia played a central role in the evolution of modern rational basis jurisprudence. During those deliberations, Justices William Brennan and Lewis Powell made a concerted effort to unite a majority of the justices behind an opinion that would have committed the Court to a version of the rational basis test that was significantly less deferential than the approach that had been followed by the Warren Court. When this effort failed, it became clear that the justices were irrevocably divided, and that no single, definitive formulation could command majority support. Thus, the members of the Court simply agreed to disagree, and the core issue remained unresolved for the remainder of Burger’s tenure.

The Burger Court and the Conflict over the Rational Basis Test: The Untold Story of Massachusetts Bd. of Retirement v. Murgia

The Burger Court and the Conflict over the Rational Basis Test: The Untold Story of Massachusetts Bd. of Retirement v. Murgia EARL M. MALTZ Few commentators would rank Massa­ chusetts Bd. ofRetirement v. Murgia' high in terms ofdoctrinal significance. In rejecting an equal protection challenge to a Massachusetts statute that required police officers to retire at age fifty, the Court made no effort to refine the parameters of rational basis analysis. Instead, a briefper curiam opinion simply noted that the rational basis test was “a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoid­ able one” and that “perfection in making the necessary classifications is neither possible nor necessary.”2 In fact, however, the internal delibera­ tions of the Court in Murgia played a central role in the evolution of modem rational basis jurisprudence. During those deliberations, Justices William J. Brennan, Jr., and Lewis F. Powell, Jr., made a concerted effort to unite a majority of the Justices behind an opinion that would have committed the Court to a version of the rational basis test that was significantly less deferential than the ap­ proach that had been followed by the Warren Court. When this effort failed, it became clear that the Justices were irrevocably divided, and that no single, definitive formulation could command majority support. Thus, the mem­ bers of the Court simply agreed to disagree, and the core issue remained unresolved for the remainder of Burger’s tenure. THE RATIONAL BASIS TEST IN THE EARLY 1970s The early 1970s was a period of great ferment in the development of equal protec­ tion doctrine. At the time that Warren Burger succeeded Earl Warren as Chief Justice in MASSACHUSETTS Bd. OF RETIREMENT v. MURGIA AND RATIONAL BASIS 265 1969, the traditional structure of two-tiered analysis appeared to be firmly entrenched in the Court’s constitutional jurisprudence. Un­ der this approach, legally established distinc­ tions were divided into two categories. Ifsuch a distinction was based on one of a small group of suspect classifications or implicated one ofa limited numberoffundamental rights, then the distinction was subjected to “strict scrutiny” and would only survive a constitu­ tional attack if the government could demon­ strate that the distinction was necessary to serve a compelling governmental interest. In practice, this standard was so stringent that this high level of scrutiny was famously described by one commentator as “strict in theory but fatal in fact.”3 By contrast, the constitutionality of all other classifications was measured only by a rational basis test that was as deferential as strict scrutiny was harsh. Thus, for example, in his opinion for the Court in McGowan v. Maryland,4 Chief Justice Warren relied on the 1920 decision in Lindsley v. Natural Carbonic Gas Co. and a variety ofother cases in declaring that, under the rational basis test, “a statutory discrimina­ tion will not be set aside if any state of facts reasonably may be conceived to justify it.”6 Although a number of late Warren Court decisions might have been taken to suggest that a majority ofthe Justices were prepared to designate additional classifications as “sus­ pect” and also to expand the set ofrights that would be deemed fundamental, the Court remained firmly committed to deference in all other equal protection cases. The equal protection decisions of the early Burger era were far less consistent in this regard. In some high-profile cases, the Court appeared to take the same approach to rational basis analysis that had animated McGowan and its progeny. Thus, for example, in Dandridge v. Williams (1970), the majority opinion explicitly adopted the McGowan standard in upholding the constitutionality of a Maryland statute that limited the amount ofbenefits that could be paid to families under the Aid to Families with Dependent Children Program.7 But in a variety of other cases, including challenges to statutes that discrimi­ nated against women and illegitimate children and laws that restricted access to contra­ ceptives and eligibility for welfare benefits, a majority of the Justices concluded that statutory classifications did not satisfy the strictures of rational basis analysis. The 1971 decision in Reed v. Reed...

Federal Preemption and Immigrants' Rights

Recently, immigration scholars have focused on the relationship between federal, state, and local governments in regulating immigration to the exclusion of civil rights issues. States and localities assert that they should be able to use their Tenth Amendment police powers to regulate unauthorized immigrants within their borders, while the federal government claims exclusivity in the area of immigration law and policy. In the middle of this debate, there is the question of whether states abrogate individual civil rights and civil liberties when exercising their police powers to regulate immigration. This article takes a detailed look at these complex issues of federalism and individual rights in the context of immigration regulation. The first section of the paper is an overview of Arizona’s S.B. 1070 and copycat legislation, which require state and local law enforcement to make a determination regarding a person’s immigration status when reasonable suspicion exists that the person is unlawfully present. The second section critiques the notion of providing states and localities unfettered discretion to determine the immigration status of individuals during routine stops. This section examines the implications of a policy where states, as sovereigns, are given the power to regulate immigration within their borders. The last section analyzes why equal protection challenges under the Fourteenth Amendment have not been raised to challenge laws providing state and local officials with the power to make immigration determinations. It specifically examines the Arizona case, Valle de Sol v. Arizona, and how equal protection claims were raised in response to the Show Me Your Papers Provisions of S.B. 1070.

The Inevitable Irrelevance of Affirmative Action Jurisprudence

When the Supreme Court decides Fisher v. Texas next term, which presents an Equal Protection challenge to the University of Texas’ race-preference admissions policy, the likely outcome is that it will not abolish affirmative action programs wholesale. Considering the present make-up of the Court, following Fisher, colleges, universities and graduate schools will remain free to pursue the Court’s previously announced goal of admitting individual students who as a group present a critical mass of diverse viewpoints. To meet this goal, schools must create programs that are narrowly tailored to achieve the compelling governmental interest in what has come to be considered viewpoint diversity; an assurance of otherwise under-represented voices in the classroom. In many instances, accepting students who will lend a differing viewpoint to the classroom is contrary to the current trend among schools to pursue favorable national recognition from various news outlets, most notably U.S. News and World Report. The problem lies with consideration of underrepresented students, who generally apply to schools with academic test scores that are not competitive with their majority peers. The disparity among minority and non-minority applicant test scores means that admitting a significant number of minority students would result in a potential decrease in a school’s mean entering standardized test scores, a number which factors significantly into a school’s national rank. For the most part, institutes of higher education have become so consumed with the goal of achieving the highest possible ranking that they are uninterested in constructing constitutionally permissible race-preference admissions programs, even in light of the Court’s continued guidance on the matter.

Missing Links in the President's Evolution on Same-Sex Marriage

The President is correct that marriage historically has been the province of the states. But that fact hardly insulates state marriage laws from equal protection challenges, as Loving v. Virginia makes clear. And that makes sense, for the Fourteenth Amendment reaches all state laws, regardless of their subject matters. Specifically, modern judicial doctrine “federalize[s]” and makes “a national issue” of the question of same-sex marriage, at least insofar as it subjects all state laws to some level of equal protection scrutiny. This fact about modern constitutional doctrine leaves the constitutional law professor-turned-President on the horns of a dilemma. He cannot simultaneously conclude that DOMA is unconstitutional under existing equal protection doctrine and yet also imagine that the states may constitutionally refuse to permit or recognize same-sex marriage. If federal laws should be subject to heightened scrutiny when they treat same-sex marriage differently from heterosexual marriage, then so must state laws that deny recognition for, or bar, same-sex marriages. Moreover, it is almost certain that the heightened scrutiny the President favors would lead to the wholesale invalidation of those state laws. In other words, the Obama Administration’s argument against DOMA, if applied to state laws, should generate nationwide uniformity. Each and every state will have to recognize same-sex marriages, at least so long as they recognize opposite-sex marriages. The President’s constitutional contortions cast doubt on the wisdom of a scheme where the Chief Executive may make independent constitutional determinations and act upon them, including declining to defend the constitutionality of certain federal laws. However much this critique may be true as applied to President Obama and same-sex marriage, one should not expect perfection from Presidents. This is not to excuse the President’s same-sex marriage contortions. It is only meant to suggest that when it comes to constitutional interpretation, each of us lives in a glass house. However imperfect any particular President might be, the institutional design question is whether the system of constitutional defense works best with the presidency actively defending the Constitution. If the system is better with active presidential involvement, as a supplement to judicial review and other protective mechanisms, it does not matter much that presidential defense measures, by themselves, are imperfect.

Taking Votes Seriously: Examining Minimum Age Qualifications

The right to vote as a fundamental right is subject to strict scrutiny when it is bestowed unequally. An issue of considerable complexity and importance has been generally ignored: minimum age qualifications. These qualifications, which deny the vote to nearly a quarter of the population in the United States, must be justified as a matter of law and justice. Intuition supplies a number of potential justifications: (a lack of) intelligence, maturity, and independence. That intuition is strongly held, but empirically dubious. It is unfortunate that these qualifications have existed for so long on intuition alone. Only when other such intuitions were challenged legally were some of the worst examples of discrimination undone - woman's suffrage being the closest analogue. The following arguments are considered and rejected: (1) qualifications are immune from equal protection challenges, (2) age, itself, as a state interest, (3) maturity in voters as necessary under strict scrutiny analysis, (4) intelligence in voters as necessary, (5) independence in voters as necessary, and (6) age qualifications as a necessary to avoid other pernicious discrimination.

Republication- Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany

[T]here exists some strange misconception of the scope of this [due process] provision. … [I]t would seem, from the character of many of the cases before us, and the arguments made in them, that the clause… is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant… of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.As Justice Miller's famous lament suggests, wishful thinkers have sought since the beginning to find a way of making the United States Supreme Court ultimate censor of the reasonableness of all governmental action. Justice Chase thought he had discovered the magic wand in natural law, Justice Bradley in the Privileges or Immunities Clause, Justice Goldberg in the Ninth Amendment. Miller battled bravely, but he had lent significant support to the enemy with his freewheeling opinion inLoan Association v. Topeka.The fire was kept flickering in dissent and in majority opinions upholding laws against due process and equal protection challenges only because they were reasonable. It burst into full flame inLochner v. New Yorkin 1905, and for the next quarter century the Supreme Court was indeed what Justice Miller had denied it should be: ultimate censor of the reasonableness of all governmental action.