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Volume 9, Number 2, Spring 2004


From Bakke to Grutter and Beyond: Asian Americans and Diversity in America, 129
Harvey Gee

In this article, the author makes observations of the Asian American experience and offers comments on the influence that the jurisprudence of race and Asian Americans have on each other.

The author makes this analysis by building on two theories advanced by Angelo Ancheta. First, that because mainstream America often equates Asian Americans with foreigners or immigrants, this leads to a belief that they are entitled to lesser standards of protection than “true Americans.” Second, that the characterization of Asian Americans as a “model minority” plays a role in establishing and sustaining a racial hierarchy, where other racial groups are encouraged to be more like Asian Americans, who are in turn encouraged to be more like upwardly mobile whites. Ancheta believes that this hierarchy denies the reality of the Asian American oppression, while legitimizing the oppression of other racial minorities and poor whites.

The author uses these theories to make two points. First, traditional equal protection analysis does not apply well to Asian Americans since they have been and continue to be perceived as foreign. Second, most Americans are unaware of the work by Asian American civil rights groups who have advocated for the preservation of affirmative action. The author believes that only by inviting Asian Americans, and other nonwhites, into the conversation about civil rights, and by openly addressing the more subtle discriminations
that continue to disadvantage these groups, will we be able to improve race relations in America.


The Unprotected Workforce: Why Title VII Must Apply To Workfare Participants, 159
Nicola Kean

In “The Unprotected Workforce: Why Title VII Must Apply To Workfare Participants,” Nicola Kean argues for the need of workfare participants to enjoy full Title VII protections. Following the welfare reforms of 1996, workfare participants were required to work in either public or private sector jobs in order to continue to receive their benefits. The Personal Responsibility and Work Reconciliation Act (PRWORA) is the act that implements the workfare requirements. However, under the PRWORA the workfare participants status as employees is not explicitly stated, and therefore the extent to which they are entitled to Title VII employment discrimination protections is uncertain. Citing sexual harassment violations and gender based discrimination, Kean proposes that Congress give the courts more guidance by explicitly stating that workfare participants are entitled to Title VII protections.


“Additional Evidence” Under the Individuals with Disabilities Education Act: The Need for Rigor, 201
Andriy Krahmal, Perry A. Zirkel, & Emily J. Kirk

The Individuals with Disabilities Act (IDEA) seeks to ensure that free appropriate public education is available to all handicapped children. In the resolution of disputes under the legislation, parents of disabled children are provided a set of procedural safeguards, which include a due process hearing by an impartial hearing officer, followed by the right to judicial review. This article surveys the approaches courts have taken toward admitting additional evidence during the judicial review stage, and formulates a standard
approach. The authors conclude that courts should adopt a more stringent standard for the admission of evidence during judicial review of IDEA disputes.


Do Prisoners have a Right Under the Eighth Amendment to HIV Testing on Demand?, 233
Kristi M. Couvillon

In Do Prisoners have a Right Under the Eighth Amendment to HIV Testing on Demand?, author Kristi M. Couvillon explores prisoners rights to HIV testing under the two-pronged test established in Estelle v. Gamble. This case established a prisoner’s right to receive adequate medical care and requires plaintiffs to prove (1) deliberate indifference by prison officials (2) to a prisoner’s serious medical needs in order to determine whether care is entitled under the Eighth Amendment. Although current case law seems to indicate that prisoners do not have a right to HIV testing upon request, Couvillon makes several compelling arguments that seem to indicate that this may be a violation of constitutional rights. Changing attitudes of society, decisions involving infectious diseases, and Eighth Amendment concerns seem to indicate that there is a growing trend in favor of recognizing this rights.