David A. Weinstein

Volume 28.1 (download PDF)

Abstract

In 1883, in People ex rel. King v. Gallagher, the New York Court of Appeals affirmed the dismissal of a lawsuit brought on behalf of an eleven-year-old African American girl who sought admission into her neighborhood public school in Brooklyn and thereby challenged the legal segregation regime governing New York’s public education system. The case, largely forgotten today, had a profound impact on subsequent legal efforts at school desegregation. This article examines the development of African American legal rights to public education in New York State in the nineteenth century and early efforts to challenge the exclusion of Black students from public schools. It describes the King litigation and its place in the development of civil rights law, focusing on its role in entrenching the “separate but equal” doctrine.

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Sígrid Vendrell-Polanco

Volume 28.1 (download PDF)

Abstract

The United States purports to maintain a democratic relationship with its inhabited territories, yet the Supreme Court continues to uphold twentieth century laws that affirm rather than abrogate colonial policies. The gap between how the United States idealizes democracy and its real world application, especially in its five colonized territories (Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, the United States Virgin Islands, and American Samoa), is not just growing – it is becoming a chasm. These colonies are currently referred to as United States territories. In 2023, the U.S. territory of Puerto Rico experienced a controversial sovereignty challenge surrounding the Supreme Court’s ruling in Financial Oversight & Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. In 2023, the Puerto Rican people expressed national outrage at the implementation and supervision of the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”) congressional statute due to its exclusion of Puerto Rican constituents from equal collaboration in debt crisis resolution and pronounced refusal of government transparency. This article contributes to the scholarly literature on United States territorial law by condemning the oppressive application of federal laws to the territories and contends that the Court has cut off any viable remedy for Puerto Rico to redress governance grievances. The Court continues to affirm colonial rule without a viable remedy for self-governance.

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Eric Lukoff

Volume 28.1 (download PDF)

Abstract

Due process in safety net public benefit programs requires agencies to employ modern technology in providing notice that is reasonably likely to reach participants. The Supreme Court has held that due process is dependent on the time, place, and circumstances in which it operates. Scholars have further argued that due process is adaptable to changing facts and circumstances over time. Yet, mailed paper notices remain the standard in providing notice to participants in public benefit programs.

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Rebecca B. Stein

Volume 28.1 (download PDF)

Abstract

The Pregnant Workers Fairness Act (“PWFA”) establishes the first federal standard to protect pregnant workers by explicitly granting them the right to reasonable workplace accommodations. Historically, pregnant workers have faced challenges in receiving the necessary accommodations due to limited legal protections, often forcing them to choose between income and health. Previous legislation, such as the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act, provided insufficient protection.

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Ally Coll

Volume 27.2 (download PDF)

Abstract

This term, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court invalidated Harvard and the University of North Carolina’s (“UNC”) race-conscious admissions programs as unconstitutional under the Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964. In a significant departure from past precedent, the Court concluded that Harvard and UNC’s programs “cannot be reconciled with the guarantees of the Equal Protection Clause.” In anticipation of and in the wake of this decision, individuals and organizations who oppose similar workplace diversity programs brought lawsuits challenging the legality of various corporate diversity, equity, and inclusion (“DEI”) programs under a range of federal civil rights statutes. Lower courts considering these claims have thus far largely declined to adjudicate them on the merits, instead dismissing them for lack of Article III standing. While much attention has been placed on the implications of the Court’s substantive reasoning in Students for Fair Admissions for corporate DEI programs, this Article argues that the Court’s standing analysis this term, both in the affirmative action case and in other key decisions, is equally important to the outcome of pending challenges to such initiatives.

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Mohamed Akram Faizer

Volume 27.2 (download PDF)

Abstract

The U.S. Supreme Court’s decision to invalidate race-based admissions will problematically make it more difficult for underrepresented minorities’ to gain admission to elite colleges and universities. However, it offers an opportunity to finally address racial inequality in access to preschool and K-12 education, by removing the political cover that allowed elite credentialing to perpetuate social advantage and ignore distributional justice. To create a more inclusive admissions process, cultural competence experts should collaborate with civil society to develop policies that consider all perspectives. This approach, inspired by administrative law’s notice-and-comment framework, can help institutions prioritize factors like resilience over regressive metrics tied to socioeconomic status. In the long term, this shift could encourage elite schools to engage with marginalized communities to address the racial opportunity gap from the ground up. It might also challenge the country’s excessive focus on hyper-elite credentials as a pathway to success, and recognize that there are many highly capable students and graduates from less selective schools that merit consideration for prestigious jobs. This change could promote socioeconomic mobility and foster a more inclusive and equitable society.

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Salimah Khoja & Paulina Leyva Hernandez

Volume 27.2 (download PDF)

Abstract

In 2023 the Texas legislature passed Senate Bill 4 (“S.B. 4”), which empowers state and local law enforcement agencies to engage in immigration enforcement by arresting and deporting migrants who are suspected of crossing the southern border. Anti-immigrant state laws like Texas’s S.B. 4 and Arizona’s Senate Bill 1070 (“S.B. 1070”) were created to test the limits of state power and limit the reach of federal immigration enforcement within the states. Legal challenges to state laws like S.B. 4 and S.B. 1070 demonstrate the ongoing tension between federal and state governments related to authority over immigration matters, even though immigration has been within the federal government’s purview since the early days of the United States, as recognized by the judiciary for more than a century. This Note focuses on the immigration preemption doctrine and argues that the Supreme Court should declare S.B. 4 unconstitutional, while protecting states’ ability to continue creating humane, immigrant-inclusive policies without impermissibly disrupting the fabric of federal immigration enforcement actions.

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Katie Corwin

Volume 27.2 (download PDF)

Abstract

The COVID-19 pandemic played a crucial role in establishing the use of telehealth in all aspects of health care with one huge exception: abortion. Conservative politicians often do not categorize abortion as health care, leading to a stark contrast in the treatment of reproductive health care, particularly in terms of telehealth availability. This Comment examines state laws relating to telehealth abortion, how lawmakers restrict access to abortion by attacking telehealth abortion, and the resulting legal uncertainty for patients and practitioners. The central argument of this Comment is that legally protecting and expanding telehealth is imperative for increasing access to reproductive health care and abortion as well as improving public health.

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Bina Ahmad

Volume 27.2 (download PDF)

Abstract

The U.S. legal system is a colonizer’s system constructed to uphold power and protect the powerful. For radical lawyers, it is the language of power we need to speak and understand to protect ourselves and our communities from this violence. As law enforcement actors, prosecutors are arguably the most powerful actors in our criminal legal system, able to ruin people’s lives at will and with absolute immunity to protect them from any accountability for any misconduct. Even with professional attorney ethics rules and state bar grievance committees tasked with holding attorneys to these ethics rules, prosecutors are still rarely disciplined. This note argues that in addition to small-scale abolitionist reforms such as abolishing absolute immunity, we must go beyond this and shrink prosecutorial power, and make not only prosecutorial misconduct but the entire legal system accessible, transparent and open to the public.

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