Equal Protection Rights Research Articles

The United States Constitution: Legal Literacy and School Nursing.

The school nurse works in the nexus of health care and education, combining laws and regulations from each discipline to create the boundaries of their practice. The U.S. Constitution provides fundamental rights for all citizens and is one example of the legal parameters that apply to school nursing practice. Without understanding the implications of this legal framework, the school nurse may not recognize situations that have the potential to deny students their guaranteed rights. Through a broad discussion of the Fourth (search and seizure), Fifth (protection from self-incrimination), and Fourteenth (equal protection, due process, and parental rights) Amendments, the author presents the dangers of disregarding or being unaware of these rights. The purpose of this article is to encourage school nurses to examine their practice through the lens of the legal protections afforded by the Constitution and to discuss considerations and recommendations to improved legal literacy and application to daily practice.

The Anti-Abortion Movement and the Ghost of Margaret Sanger

The Anti-Abortion Movement and the Ghost of Margaret Sanger Melinda Cooper (bio) Click for larger view View full resolution Margaret Sanger in Los Angeles in 1928 (Los Angeles Tmes/Wikimedia Commons) [End Page 60] After half a century of unremitting assaults—years spent defunding abortion care, restricting abortion access, and terrorizing women and their doctors—the religious right has achieved its first major judicial breakthrough: the overturning of Roe v. Wade. Among a volley of first-term decisions by the ultraconservative Supreme Court supermajority installed by President Donald Trump, Dobbs v. Jackson Women's Health Organization must be seen as part of an unfolding judicial counterrevolution. The electoral pushback against the decision has been impressive, and no doubt stronger than Republicans had anticipated. In ballot initiatives in Kansas, Kentucky, California, Michigan, and Vermont, voters have either rejected proposed abortion bans or reaffirmed existing protections. Yet the Dobbs decision is unlikely to be the Supreme Court's last word on the matter. For decades, religious conservatives have wanted to overturn Roe and return abortion laws to state legislatures. But they have never seen this as the be-all and end-all of their struggle. For the right-to-life movement that emerged in the 1970s, the reversion of authority to states is a stepping stone on the road to a higher goal: a federal prohibition on abortion that would overrule the ability of any state to legalize the practice. The recognition of fetal personhood is a key plank in this agenda. In the years leading up to the Roe decision in 1973, as legal historian Mary Ziegler recounts in Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, anti-abortion activists called on state and federal courts to recognize the civil rights of the unborn. They appealed to the Declaration of Independence, with its affirmation of an unalienable right to life, and to the Fourteenth Amendment (the Reconstruction-era amendment that reaffirmed and clarified the rights enumerated in the Declaration) to argue that the unborn deserved equal protection and due process like any other minority. In several instances, they cited as precedent the 1954 Brown v. Board of Education decision outlawing segregation, hoping to convince the courts that fetuses, like African Americans under Jim Crow, were natural persons unjustly deprived of their full rights to life. [End Page 61] Their efforts were unceremoniously rebuffed by Justice Harry A. Blackmun, author of the majority opinion in Roe, who argued that fetal personhood was nowhere to be found in the Constitution and that, in any case, the Court had no authority to rule on a matter that was unresolved among religious scholars and biologists. Crucially, however, Blackmun acknowledged that if the concept of "person" could somehow be construed to apply to the unborn, then no one could legitimately deny due process and equal protection rights to fetuses—and the case for abortion rights would "collapse." In the wake of Roe, anti-abortion activists remained hopeful they could work through Congress and the states to secure a constitutional amendment that would establish the personhood of the fetus once and for all. Their hopes faded in 1983, when the most promising of such proposals died in Congress. At this point, they resorted to less direct ways of inserting the concept of fetal personhood into law. Beginning in the mid-1980s and accelerating after the Planned Parenthood v. Casey decision of 1992, anti-abortion activists fought for fetal homicide laws, late-term abortion bans, fetal pain legislation, and state edicts compelling women to view ultrasound images of fetuses before abortion. In adopting these more incremental measures, religious conservatives were conceding tactical defeat. Yet they never lost sight of the strategic endgame. Such legal changes were designed to turn the idea of fetal personhood into common sense; an accumulation of minor laws could be invoked as precedent at the right time. With a 6–3 conservative supermajority and a Republican Party moved far to the right, that time has clearly arrived. Anti-abortion activists are now returning to their original goal: "the recognition of fetal personhood and the criminalization of abortion," Ziegler writes, in all states. ______ In preparing the ground...

Automating Judicial Discretion: How Algorithmic Risk Assessments in Pretrial Adjudications Violate Equal Protection Rights on the Basis of Race

Automating Judicial Discretion: How Algorithmic Risk Assessments in Pretrial Adjudications Violate Equal Protection Rights on the Basis of Race

Interpretation of the Free Exercise Clause and the Disparate Effect on Faith-Based Organizations in a Time of Crisis

In late December of 2019 a novel strain of coronavirus was discovered in the Wuhan Province of China. This novel strain, SARS-Cov-2 which causes the disease commonly known as COVID-19 began to spread across the world. In March of 2020, the United States declared a state of emergency in order to combat what had become a pandemic. Following the state of emergency declaration, state governors began to issue stay at home orders to prevent the spread of the virus within the community. These Executive Orders raised constitutional questions. Many challenges to these Orders stemmed from houses of worship. Based on the concept of neutral and generally applicable laws, the Supreme Court has upheld these Executives Orders. Not only do these Orders not specifically target faith-based organizations, but in some cases, there have been religious exemptions carved out of the restrictions for houses of worship. This comment presents an overview of some of the most prominent free exercise case law and examines how free exercise jurisprudence has been applied to this new situation. This comment posits that the Executive Orders as well as the religious exemptions carved out of said Executive Orders have had a disparate impact on minority communities. In order to combat this disparity, this comment proposes a hybrid claim against a violation of equal protection rights combined with religious rights infringement. Alone, an equal protection claim is difficult to succeed on without a showing of intentional discrimination, however, combined with religion, it may be enough to overcome this threshold.

Transforming the Progressive Prosecutor Movement

It is a near universally accepted principle that prosecutors are the most powerful actors in the criminal system. In response, a new movement has emerged: its proponents argue that, by electing progressive district attorneys, we can use the power of prosecutors to end mass incarceration and bring fairness to the criminal system without changing a single law. They propose to accomplish these goals primarily by declining to prosecute certain low-level crimes, expanding diversion programs, and replacing hardline assistants with reform-minded outsiders. Academics, activists, presidential candidates, and even a Supreme Court Justice have endorsed this movement as the key to change. With little sustained scrutiny of this development, this Article takes the progressive prosecutor movement’s objectives as they are and asks whether, as currently framed, it is likely to achieve them. The conclusion is simple: no. This movement acknowledges the “breathtaking” power that prosecutors yield, then asks its candidates to use that power for good and trusts them to do so. This Article offers a more efficacious prescription: if you are a prosecutor truly committed to transforming the criminal system, relinquish your power. Do not trade the rhetorical appeal of being tough on violent crime for political capital to spend on lenience for those who commit low-level offenses. Advocate for the reallocation of funds from prosecutors’ offices—rather than the expansion of diversion programs—to social services to keep the mentally ill, substance-addicted, and poor out of the criminal system. Rather than hoping to prevent wrongful convictions and over-punitiveness by changing who works in your office, lobby for a stronger indigent defense system and more external limits on prosecutorial power. To combat racial inequities in the criminal system, support efforts to strengthen defendants’ equal protection rights, instead of simply publishing statistics. Through these shifts, we can harness this moment where criminal justice reform tops the national agenda and implement truly transformative change.

Belief v. Belief: Resolving LGBTQ Rights Conflicts in the Religious Workplace

Employment disputes are increasingly centered on the conflicting moral and religious values of corporations, their employees, and their customers. These conflicts are especially challenging when they involve the rights of lesbian, gay, bisexual, transsexual, and queer/questioning (LGBTQ) employees and customers contraposed against the religious beliefs of corporations and their owners. When religious values compete with civil rights in the employment context, a complex web of legal protections renders the outcome unclear. Conflicts over these competing rights can involve a number of broad, thorny legal disputes, including those concerning the First Amendment and Title VII, fights between secular and religious beliefs, and competition between religious beliefs and equal protection rights under the Fourteenth Amendment. This article illustrates the reasons for this growing tension between the beliefs of business owners and the beliefs of their employees. It explores recent conflicts between religion and rights in the workplace particularly in the context of LGBTQ rights, the ways in which state‐level regulation complicates these conflicts, and the potential impact of recent cases addressing these concerns. It also identifies examples of potential specific conflicts in the context of LGBTQ rights and suggests the principles that should guide the resolution of these cases, offering a framework for assessing the hierarchy that a court may use in resolving cases in which values conflict with rights in the workplace. Finally, it addresses some of the troubling implications that arise as a result of the resolution of the potential specific conflicts.

U.S. Supreme Court in the civil rights era: Deliberative Democracy and its educative institutional role, 1950s–1970s

This article examines the U.S. Supreme Court’s lesser-known educative role as an egalitarian institution within a broader deliberative democratic process. Scholars have argued that the Court’s long asserted power of judicial review, especially in the equal protection and civil rights context, has been an over-reach of the judicial branch’s constitutional authority and responsibilities. Normative and empirical critiques have been centered on the aims of judicial review, and the challenges it poses in American political life. A core issue surrounding these critiques is that Justices are appointed not elected, and thus undermine the principle of majority rule in the U.S. constitutional democratic order. Although these critiques are legitimate in terms of claims about unelected Supreme Court Justices’ seemingly discretionary powers over elected legislative bodies, and the uncertain policy implications of judicial pronouncements on the broader society, there is, nevertheless, a positive application of judicial review as a tool Justices use as part of their educative role overcoming the so-called “counter-majoritarian difficulty.” Through a close reading of oral arguments in Brown vs. Board of Education (1954) and San Antonio vs. Rodriguez (1973)—two landmark cases invoking the Equal Protection Clause of the 14th Amendment to the federal Constitution—the article shows how appointed Justices adjudicate individual cases on appeal and attempt to educate (through an argumentative, reason-based and question-centered process) citizenlitigants and their legal representatives about the importance of equality, fairness and ethical responsibility even prior to rendering final decisions on policy controversies that have broader national social, political and economic implications.

Equal Protection versus Free Speech Rights: When Gains Loom Larger than Losses

SummaryThis paper examines the tension between equal protection and free speech in the hate speech context through a prospect theory lens. Two hundred and fifty‐four participants recruited through Amazon's Mechanical Turk read a First Amendment free speech or Fourteenth Amendment equal protection argument framed to endorse the protections gained by each right, the losses avoided by each right, or the security provided by each right. Results showed gain‐framing was more persuasive than loss‐framing. Participant race and constitutional principle influenced punishment invoked for cross burning but not destruction of property or trespassing. Participants who received a positive framed equal protection argument believed the target would experience stronger negative emotions, particularly under low intimidation. Furthermore, participants receiving a positive frame speech argument believed the target would be less willing to support suppression. Unlike previous research, which suggests an equal protection principle default, this study demonstrated an impact of framed statements on decisions.Copyright © 2016 John Wiley & Sons, Ltd.

Who Wears the Pants? The Difficulties Men Face When Trying to Take Their Spouse's Surname after Marriage

Marital laws in the majority of states currently limit or impose significant obstacles for men seeking to change their surname upon marriage, unequal to laws regarding women who change their surname change. Women currently have the right to sign a marriage license and take their husband's name or some combination name. In contrast, only nine states provide men with the same opportunity. In the remaining states, men usually must apply for a formal name change in order to legally take their wives’ surname. This process requires paying a substantial court filing fee, dealing with drawn out court proceedings and, in some cases, being required to post in newspapers personal information (such as financial information) as well as the petition to change one's name. This Note argues that it is unconstitutional for states to have unequal procedures for men and women to change their surnames upon marriage, resulting in a violation of men's equal protection rights; thus, states can avoid a judicial decision that the current name change statute is unconstitutional by simply equalizing the standard, making it gender neutral. Key Points for the Family Court Community Women have the statutory right to either change their last name upon marriage or retain their maiden name in all fifty states Men are provided the same procedure as women to change their surname upon marriage in only nine states The process for men to change their surname upon marriage in the majority of states can be time consuming, expensive and, when all is said and done, a judge usually has unlimited discretion to decide such matters Men typically must adhere to formal name change procedures to change their surname after marriage, primarily by petitioning the court The issue is that it is unconstitutional for states to have unequal procedures for men and women to change their surname upon marriage in violation of husbands’ equal protection rights Courts should strike down statutes that discriminate against men changing their surname upon marriage or extend to men the same rights women currently have in all states

SEC Administrative Proceedings and Equal Protection “Class of One” Challenges: Evaluating Concerns about SEC Forum Choices Notes

SEC Administrative Proceedings and Equal Protection “Class of One” Challenges: Evaluating Concerns about SEC Forum Choices Notes, 2015 Colum. Bus. L. Rev. 1195 (2015). In the years since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities and Exchange Commission has made use of its new authority to initiate administrative proceedings against individuals who previously would have faced action in federal court. Several individuals have challenged the SEC’s decision to bring enforcement actions in the administrative forum as a violation of equal protection rights. Their arguments draw on two Supreme Court cases—Village of Willowbrook v. Olech and Engquist v. Oregon Department of Agriculture—that allow “classes of one” to pursue equal protection claims. This Note addresses this recent string of challenges. It aims to show that the current system is open to abuse and can potentially lead to the sort of unfair treatment that the Equal Protection Clause of the Constitution condemns. As such, the system by which the SEC selects a forum is in need of reforms that will alleviate the present concerns. The SEC should implement changes to minimize the burdens individuals face in administrative proceedings and should also provide greater transparency about its rationale for selecting a particular forum.

After the Tiers: Windsor, Congressional Power to Enforce Equal Protection, and the Challenge of Pointillist Constitutionalism

The Supreme Court’s June 2013 opinion in United States v. Windsor is remarkable for its bypassing of standard equal protection doctrine. In striking down section 3 of the Defense of Marriage Act as unconstitutional discrimination against gays and lesbians, Windsor failed to broach the question whether sexual orientation constitutes a suspect class; indeed, it failed even to perform the “fit” analysis that doctrine demands. Instead, the Court examined the statute and accompanying legislative materials and concluded that section 3 violated the Equal Protection Clause’s core command that government action not be based on animus against a disfavored group.Windsor’s unusually direct methodology conflicts with the Court’s jurisprudence governing Congress’s power to enforce the Equal Protection Clause. That jurisprudence, requiring that there be “congruence and proportionality” between enforcement legislation and the constitutional violation the law targets, has relied heavily on the suspect class status of the benefitted group. Until very recently, the results of the congruence and proportionality inquiry were predictable; legislation that enforced the equal protection rights of suspect or quasi-suspect classes would enjoy deferential judicial review, while legislation enforcing the rights of nonsuspect classes would receive a skeptical judicial reception. While recent cases potentially call this template into question, it remains for now a basic feature of the Court’s Enforcement Clause doctrine.Windsor, by abjuring suspect class and even “fit” analysis, undermines the Court’s approach to the enforcement power. This Article examines the challenge Windsor poses to the Court’s Enforcement Clause doctrine. It argues that Windsor requires the Court to reconsider its approach to the congruence and proportionality standard. In particular, it argues that Windsor’s more particularized equal protection methodology requires the Court to consider how Congress may legitimately translate such judicial pointillism into enforcement legislation’s inevitably broader brushstrokes.It is urgent that the Court consider a new approach to the enforcement power. Congress either has enacted or is poised to enact several significant pieces of enforcement legislation benefitting groups whose suspect class status has not been determined and likely never will. Unless the Court is prepared to exclude Congress from participating in the equality projects the Court itself has embarked on, the Court needs to consider how to harmonize its newfound interest in constitutional pointillism with enforcement legislation’s broader brushstrokes.This Article suggests such an approach, one that recognizes Congress’s institutional competence and legitimacy to make broad judgments about the same sort of animus the Court found through its more precisely targeted inquiry in Windsor. This approach would not immunize enforcement legislation from judicial review. As explained in this Article, however, this approach does call for a change in the way the Court performs congruence and proportionality review. This Article closes by applying this new approach to a pending piece of enforcement legislation, the Employment Non- Discrimination Act, which would offer federal employment discrimination protections to gay and lesbian workers.

Are Non-Economic Caps Constitutional?

As part of broader tort reform efforts, states have enacted non-economic damage cap statutes over the past few decades. States often cite creating a positive business climate and concerns over the availability of insurance coverage as bases for damage caps. Balancing these concerns with society's interests in fairly compensating tort victims has proven difficult. Almost all damage cap statutes have been challenged on constitutional grounds at some point since their enactment. Supreme courts in Alabama, Georgia, Illinois, New Hampshire, Oregon, Texas, and Washington have declared their respective state non-economic damage cap statutes unconstitutional either altogether or in certain circumstances. Other states, like Mississippi, await decisions from appellate courts regarding the constitutionality of the state's damage caps. The most common argument against the constitutionality of cap statutes is that they violate the plaintiff's right to a jury trial. This argument appears in almost every constitutional challenge to a cap statute, although it has successfully convinced a court to strike down a cap statute as unconstitutional in only a handful of state cases. Advocates of caps consistently rely on the legitimate state interest argument--a very difficult argument to overcome and an attractive argument for a court to rely upon in upholding a cap statute. This article presents summaries of the various arguments and provides an overview of the status and constitutionality of non-economic damages caps in each State. I. Arguments Against Constitutionality A. Violate the Right to Jury Trial As described above, the most commonly-used argument against statutory caps on non-economic damages are that such statutory caps violate a citizen's right to a jury trial. For example, in Caner v. Interstate Really Mgmt. Co., (1) the trial court held that upholding that cap statute strips jury of its power to decide facts and determine damages thereby denying plaintiff right to jury trial. (2) However, to support this argument, this reasoning must distinguished statutory caps from the accepted practice of judicial remittitur, in which the appellate court remits a judgment to the trial court for reconsideration in light of excessive awards of non-economic damages. (3) B. Other Constitutional Arguments In addition to putatively violating plaintiffs' right to a jury trial, courts have proposed a myriad of other constitutional arguments against statutory caps. In Carter, the court also suggested that passage of statutory caps allowed the legislature to amend the constitution (by abrogating the constitutional right to a jury trial) extra-constitutionally. (4) This argument will prevail only in those jurisdictions which constitutionally mandate trial by jury and have no constitutional caps on non-economic damages. The court in Carter also argued that statutory caps provide an unconstitutional violation of those powers reserved to the judiciary. (5) Other courts have addressed arguments that statutory caps result in a non-uniform operation of laws, (6) constitute impermissible special legislation, (7) and constitute, in effect, a new form of legislative remittitur. (8) In jurisdictions that recognize the doctrine, statutory caps may similarly violate the open courts doctrine. (9) Perhaps most surprisingly, courts have even accepted claims that statutory caps violate state constitutional equal protection and due process rights. (10) II. Arguments For Constitutionality A majority of jurisdictions have found caps of non-economic damages to be constitutional. These jurisdictions have accepted variations of the following arguments. A. No Violation of Right to Jury Trial In contrast with those states that have overturned statutes as a violation of the right to jury trial, many states have dismissed such challenges and upheld statutory caps. …

Affirmative Action And The “Individual” Right To Equal Protection

When the Supreme Court, or one its Justices, writes an opinion invalidating a race-conscious affirmative action program, it is commonplace for the opinion to note that the rights protected by the Equal Protection Clause are “individual” or “personal,” and thus require the state to treat every person as an individual, not simply as a member of a class. This assertion about the nature of equal protection rights is assumed to be inconsistent with the classbased underpinning of affirmative action programs, and thus determinative of their invalidation. The problem with affirmative action programs, under this view, is that they ignore the individual characteristics of the persons affected and instead assign different treatment to persons based on their membership in a class. If, for example, the University of California Medical School at Davis assigns a certain number of seats in its entering class to black, Chicano, Asian, and Native-American applicants,2 it has made overly broad assumptions about the characteristics of the members of those classes, and then assigned a benefit on the basis of class membership without regard to individual merit or accomplishment.

Constitutional Rules and Institutional Roles: Lessons from the Equal Protection Class of One

This Article examines the Supreme Court's recent equal protection case, Engquist v. Oregon Department of Agriculture, where the Court held that the class-of-one equal protection theory did not apply in the government workplace. The Article concludes that Engquist reflects an implicit balancing of employees' equal protection rights and government's legitimate interests in a flexible workplace and avoidance of litigation, with the Court imposing a categorical rule favoring the government's side of the balance. This Article critiques this categorical balancing. It argues that as a substantive matter such a categorical rule is generally inappropriate where interests of constitutional stature exist on both sides of the balance. However, it is the Engquist Court's method that carries with it the most troubling implications for equal protection and constitutional rights generally. Engquist disregards the sub-constitutional decision rules that lower courts developed to apply the constitutional principle the Court announced when it officially endorsed the class-of-one theory in 2000. Those rules were designed to honor both sides of the balance described above, and drew on trial courts' ability to impose appropriate pleading requirements, sift carefully through facts and thus cull meritless claims at early stages of litigation while allowing potentially meritorious claims to progress. The Court's disregard of the doctrinal rules developed by the lower courts hearkens back to its analogous disregard of congressional factfinding supporting legislation enforcing the Fourteenth Amendment. While the Court's relationship to the lower courts is quite different from its relationship to Congress, the lower courts nevertheless have unique talents useful to the project of applying constitutional principles. Engquist's exclusion of the lower courts from the task of applying Court-announced constitutional principles suggests that the Court will also greet with skepticism future congressional attempts to participate in that project. Indeed, Engquist's method is quite consistent with the most restrictive versions of the modern Court's approach to congressional enforcement legislation. Given that equality claims in the future will likely feature conduct that is subtler and more socially embedded than the more open and obvious unconstitutional conduct of the past, any unwillingness by the Court's to accept Congress as a partner in uncovering and remedying equal protection violations constitutes an ominous portent for advocates of equality. Engquist, while certainly not a conclusive indicator of the Court's likely direction on this issue, gives cause for concern.

Terminating Water Service Violates Tenant's Rights

According to US Court of Appeals for the Sixth Circuit, if a landlord owes a city for a prior tenant's unpaid water bills, then the city's policy of denying water service to a new tenant violates the tenant's equal protection rights.

The California Recall Punch Card Litigation: Why Bush v. Gore Does Not Suck

The unprecedented California recall election of 2003 also spawned an unprecedented amount of litigation over the rules for the recall itself. Much of that litigation was patently frivolous, an attempt to throw up as much as possible against the recall to see what would stick in the interest of delaying or scuttling the recall. The recall litigation became part of what I have termed election law as political strategy.But some of the litigation had merit. This paper focuses on one of the meritorious cases, litigation over the use of punch card ballots in Los Angeles and a handful of other California counties in the recall election. Plaintiffs' argument was that the selective use of punch card voting technology, with its extraordinarily high error rates, violated the equal protection rights of voters under the United States Supreme Court's decision in v. Gore (2000). v. Gore was the case that ended the recount of votes in Florida following the November 2000 presidential election.A federal district court judge rejected the argument, but a three-judge panel of the Ninth Circuit accepted it, ordering a delay in the election until the counties could replace their punch card machines with other technology. A larger (en banc) panel of the Ninth Circuit quickly reversed the panel ruling, and the recall election took place as scheduled.In a recent California Law Review article, Professor Vikram Amar was very critical of the original Ninth Circuit panel's decision to delay the recall, and even more critical of the Supreme Court's decision in v. Gore. Indeed, in a recent roundup of the top ten lessons of the recall, Amar lists Bush v. Gore sucks as his number one lesson about the recall: the Supreme Court senselessly chose not to be explicit about things in v. Gore, thereby allowing courts such as the Ninth Circuit panel to dubiously interpret the decision as a reason to delay the recall election.In this paper, I take issue with Amar. Far from sucking, the v. Gore opinion had the salutary purpose of focusing the attention of the public, elections officials, and - as in the case of the recall - the courts, on some important yet neglected issues of the nuts-and-bolts of democracy. The debate the case has spawned, and the reforms it has started in motion, have thus far had a salutary effect on the Nation's democracy, even if that may not have been the intent of the Supreme Court Justices who decided the case. In Part I, I describe the California punch card litigation in the context of the v. Gore precedent. In Part II, I defend the original three-judge panel's opinion as a permissible application of v. Gore, and I explore more generally how v. Gore has affected the debate over the nuts and bolts of our democratic process.

Ninth Circuit Erred in Allowing Recall Election with Punch Card Votes

Among the many lawsuits filed during the unprecedented California gubernatorial recall election, the one that garnered the most attention was the case challenging the use of punch card voting in six California counties. In that suit, plaintiffs argued that the election should be delayed because the allegedly higher error rates of punch card voting compared to other systems in California denied those voters in punch card counties their equal protection rights under the California constitution and also violated the Voting Rights Act. Professor Hasen argues that the original Ninth Circuit decision delaying the election until punch card voting could be eliminated was correct, and the later en banc decision allowing the election to go forward with the selective use of punch cards was unfortunate, though understandable given the closeness of the recall election. Hasen argues that under the Supreme Court's decision in Bush v. Gore, the selective use of punch card voting constitutes an equal protection violation. The en banc court did not reach the issue. Hasen concludes that the en banc decision does not preclude other plaintiffs from bringing similar challenges in the future, and that the window remains open for voting reform lawsuits until the Supreme Court interprets Bush v. Gore otherwise.

ENDA Before it Starts: Could Gay or Lesbian State Employees Sue Their Employers for Damages Under the Proposed Employment Non-Discrimination Act, in Light of the Court's Recent Section 5 Jurisprudence?

The proposed Employment Non-Discrimination Act (ENDA) would prohibit much employment discrimination on the basis of sexual orientation. This Article considers whether ENDA would pass muster as appropriate legislation under Section 5 of the Fourteenth Amendment, thus allowing plaintiffs to seek retrospective relief against state governments in their capacity as employers. Part I lays the foundation for this examination by considering the Supreme Court's Section 5 jurisprudence, paying special attention to the cases beginning with City of Boerne v. Flores, 521 U.S. 507 (1997). Part II applies that jurisprudence to the recent versions of ENDA. The recent Section 5 cases require an examination of the suspicion with which the Court regards the underlying conduct being restricted. Applying that test to ENDA would require examining how seriously the Court takes sexual orientation discrimination. This, in turn, requires consideration of Romer v. Evans, 517 U.S. 620 (1996). The challenge is to translate Romer's concern about anti-gay state action into Section 5 language. It mirrors the Court's approach in Board of Trustees v. Garrett, 121 S.Ct. 955 (2001), in which the Court held that Title I of the Americans With Disabilities Act was not appropriate Section 5 legislation, even though it had previously found an equal protection violation when a city discriminated against the mentally disabled. After considering whether Romer means that all sexual orientation-based employment discrimination would fail the rational basis test, and reaching an equivocal conclusion, Part II continues by examining whether ENDA is sufficiently limited so as to prohibit only that discrimination that the Court would in fact consider unconstitutional. The Article suggests that ENDA's limitations and exceptions potentially limit its application only to conduct that would in fact be unconstitutional if performed by a state. Nevertheless, it is unclear whether the Court would be willing to announce such a broad constitutional rule limiting sexual orientation discrimination. Thus, the Article continues by assuming that ENDA does in fact go beyond what the Constitution commands, and considers whether ENDA constitutes appropriate prophylactic legislation, going beyond what equal protection requires but sufficiently related to those limits as to satisfy the Court's test of congruence and proportionality. Again, given ENDA's limited scope, it arguably satisfies that test. Part III takes a more prescriptive tone. It offers advice for those interested in ENDA's enactment, suggesting ways in which the bill's drafting, and especially its fact-finding, may maximize chances for its survival as an appropriate expression of Congress' Section 5 power. Part IV concludes by offering some general thoughts on the Court's recent Section 5 jurisprudence, based on the results of the foregoing analysis of ENDA as legislation designed to ensure the equal protection rights of gays and lesbians.

The Supreme Court and Public Schools

Over the course of the last century, and especially in the last forty years, the Supreme Court has resolved a broad array of constitutional claims that have arisen in the context of public elementary and secondary schools. In so doing, the Court has created a body of rules that govern the constitutional rights that students (or their parents) can legitimately assert against state and local education officials. The purpose of this Article is to study these education cases as a whole - to examine what one might call the Court's public schools jurisprudence. What one finds lurking among these cases is an intriguing puzzle: some constitutional rights are explicitly limited in the school context, while others are either no different or are slightly strengthened within the school setting. Student free speech, Fourth Amendment, and due process rights are more limited in the school setting than they are outside of that setting. With regard to this group of rights, the Court has characterized the government as acting in a special capacity - that of educator - and has accordingly given education officials greater leeway to bend constitutional rights in order to achieve certain educational goals. By contrast, student equal protection rights to be free of racial and gender discrimination, or to benefit from affirmative action programs, at the moment appear to be no different within the school setting than they are outside of that setting. The same is true with regard to student free exercise rights. Students' Establishment Clause rights, finally, are, if anything, stronger than those possessed by citizens outside of the school context; put differently, the limitations on government support of religion are more stringent within public schools than outside of them. The central question addressed by the paper is whether there is a unifying principle or theory that makes sense of the Court's decisions. After suggesting that a number of factors seem to play an influential role in the Court's decisions, including the ages of the students and the nature of the constitutional rights themselves, I will argue that the key factor to the cases is a distinction between two functions of education: academic and social. It appears that the more a particular policy has to do with the academic function of schools, the more likely it is that the Court will uphold the policy, even if it means truncating a constitutional right. The further a policy moves away from the core academic function of schools, the more likely the Court will apply traditional constitutional rules to judge the policy and strike it down. After demonstrating the traction of this positive theory, I offer a general and limited defense of the Court's approach, as well as attempt to answer possible critiques of the approach.

The Supreme Court and Public Schools

Over the course of the last century, and especially in the last forty years, the Supreme Court has resolved a broad array of constitutional claims that have arisen in the context of public elementary and secondary schools. In so doing, the Court has created a body of rules that govern the constitutional rights that students (or their parents) can legitimately assert against state and local education officials. The purpose of this Article is to study these education cases as a whole - to examine what one might call the Court's public schools jurisprudence. What one finds lurking among these cases is an intriguing puzzle: some constitutional rights are explicitly limited in the school context, while others are either no different or are slightly strengthened within the school setting. Student free speech, Fourth Amendment, and due process rights are more limited in the school setting than they are outside of that setting. With regard to this group of rights, the Court has characterized the government as acting in a special capacity - that of educator - and has accordingly given education officials greater leeway to bend constitutional rights in order to achieve certain educational goals. By contrast, student equal protection rights to be free of racial and gender discrimination, or to benefit from affirmative action programs, at the moment appear to be no different within the school setting than they are outside of that setting. The same is true with regard to student free exercise rights. Students' Establishment Clause rights, finally, are, if anything, stronger than those possessed by citizens outside of the school context; put differently, the limitations on government support of religion are more stringent within public schools than outside of them. The central question addressed by the paper is whether there is a unifying principle or theory that makes sense of the Court's decisions. After suggesting that a number of factors seem to play an influential role in the Court's decisions, including the ages of the students and the nature of the constitutional rights themselves, I will argue that the key factor to the cases is a distinction between two functions of education: academic and social. It appears that the more a particular policy has to do with the academic function of schools, the more likely it is that the Court will uphold the policy, even if it means truncating a constitutional right. The further a policy moves away from the core academic function of schools, the more likely the Court will apply traditional constitutional rules to judge the policy and strike it down. After demonstrating the traction of this positive theory, I offer a general and limited defense of the Court's approach, as well as attempt to answer possible critiques of the approach.