TEXAS JOURNAL ON CIVIL LIBERTIES & CIVIL RIGHTS
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CURRENT LOCATION: TJCLCR | Archives | VOLUME 7, ISSUE 2 (Fall, 2002)

 

Volume 7, Number 2, Fall 2002

ARTICLES

Circumventing Rodriguez: Can Plaintiffs Use the Equal Protections Clause to Challenge School Finance Disparities Caused by Inequitable State Distribution Policies?, 141
Preston C. Green & Bruce D. Baker

In 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. However, thirteen years after Rodriguez, the Supreme Court held in Papasan v. Allain, that Rodriguez did not foreclose Equal Protection Clause challenges to unequal state distribution policies.

The authors of this article focus on the funding inequalities between rich and poor school districts caused by weighted aid policies, which are designed to address educational cost differences among school districts. The authors examine a pending case, Robinson v.
Kansas
, to determine the viability of Equal Protection Clause challenges to weighted aid policies. The authors put forth several reasons for pursuing Papasan-based Equal Protection Clause challenges in their discussion of the Papasan and Robinson cases.

Finally, the authors discuss some of the implications for their analysis for school finance litigation: the probability of success with Papasan-based challenges and alternative strategies for plaintiffs to challenge the disparities created by weighted aid policies.


 

Predicting Future Supreme Court Decisions on Race and the Fourth Amendment, 167
Walter M. Norkin

In "Predicting Future Supreme Court Decisions on Race and the Fourth Amendment", Walter M. Norkin attempts to predict how the Court would decide a case that deals with racial profiling based on an officer’s personal stereotypical perceptions under Fourth
Amendment reasonable suspicion jurisprudence. Norkin first explores legal precedent, which suggests that although using race and criminal profiles to form reasonable suspicion is constitutional, race cannot be the only basis for a stop. Norkin presents a
hypothetical fact pattern and comes to a conclusion based on recent Court rulings and the views of the nine justices. He deduces that this Court will eventually allow personal stereotypical perceptions to form the basis of a reasonable suspicion determination.


 

Affirmative Action in Education: The Trust and Honesty Perspective, 187
Stylanos-Ioannis G. Koutnatzis

This article shuns the prevailing framework for constitutional analysis of affirmative action. Instead, the author identifies two rarely used principles as his basis for evaluating affirmative action policies in education. First, the author argues that we should adhere to
a principle of trust and that we should have confidence in educational institutions, that they will make proper decisions if given such authority. Second, the author advocates the principle of honesty; schools and courts should address competing proposals, affirmation
action or not, with an honest analysis and not pander to the public’s perceived perception of such policies. Ultimately, Koutnatzis does not endorse or reject affirmation action; rather, he advocates a unique interpretive method by which to evaluate the constitutionality of such policies. By adopting a new interpretive method, Koutnatzis argues the ultimate judicial determination of affirmative action, whichever it may be, will be far more credible.

NOTES

When an Anatomical “Gift” Isn’t a Gift: Presumed Consent Laws as an Affront to Religious Liberty”, 287
Carrie Parsons O’Keefe

In this note, the author makes the argument that the presumed consent law in Texas is unconstitutional on the grounds that it violates the liberties of those individuals whose religions dictate that the dead must be buried whole. In part I, the author describes the effects of the opt-out anatomical gift system in Texas as producing a system which she posits is closer to “organ conscription than philanthropic choice.”

In part II, the author argues that the presumed consent laws authorize medical examiners to collect a decedent’s body parts without consent in violation of the Free Exercise Clause of the First Amendment to the United States Constitution, the corresponding freedom of religion clause to the Texas Constitution, and the Texas Religious Freedom Restoration Act.

In part III, the author compares the Texas statute with international norms. In conclusion, the author finds that the presumed consent law for non-visceral organs or tissue is a violation of international norms and religious liberties preserved by both the
U.S. and Texas Constitutions.


 

Reasonable Accommodations as Constitutional Obligations, 317
Sean Pevsner

In "Reasonable Accommodations as Constitutional Obligations", Sean Pevsner demonstrates that states do indeed have a constitutional obligation to provide reasonable accommodations to people with disabilities in order to ensure that they have equal access to education, employment, and community services. The author first illustrates how the decision in Garrett v. University of Alabama has unresolved tensions with other Supreme Court decisions in the area of disability rights. Next Mr. Pevsner explains how the Court
could resolve these tensions by re-evaluating its interpretation of its decision in City of Cleburne v Cleburne Living Center, Inc. and applying the resulting equal protection analysis to the reasonable accommodation provisions of the ADA.

In conclusion, Mr. Pevsner argues that Congress not only has a constitutional right, but a duty to require states to provide reasonable accommodations to individuals with disabilities.