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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Dalton Primeaux

Volume 27.1 (download PDF)

Abstract

Many public safety advocates have called for the use of police body cameras to document the interactions between officers and the public. In light of the documented incidents of police violence and misconduct, some advocates and policy experts have urged law enforcement to use body cameras to discourage future wrongdoing and create a record of when such incidents do happen. In some states, body camera footage is considered public record and can be obtained upon request. Most policies concerning requests for the release of body camera footage require the chief of police to grant permission for sharing the video with parties outside of the police department, but there is little guidance regarding if and when distribution should be allowed. As a result, victims are at risk of complete exposure during incredibly vulnerable moments in their lives. Protecting the privacy of victims and others captured in footage is one concern undergirding resistance to expanding such programs.

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Sayid R. Bnefsi

Volume 27.1 (download PDF)

Abstract

The access to justice movement broadly concerns people’s ability to resolve legally actionable problems. To the extent that individuals seek resolution through civil litigation, they can be disadvantaged by their unmet need for legal services, particularly in high-stakes cases and complicated areas of law. In part, this is because legal services and litigation are cost-prohibitive, especially for indigent plaintiffs. As a result, these individuals are priced out of litigation and, by extension, unable to use law to seek justice.

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Roni Amit

Volume 27.1 (download PDF)

Abstract

Marginalized individuals are largely excluded from making rights claims in the courts because their stories of rights violations fall outside of prescribed legal categories. Framing this exclusion as a lack of knowledge and access, proponents of the access to justice movement have sought to improve outcomes for unrepresented and marginalized litigants through measures that help them understand and navigate the system. The access to justice movement seeks to make the justice system more accessible to these litigants by focusing on procedural fairness. This Article draws on empirical data and observations from Tulsa’s eviction court to consider the limits of access to justice measures focused on process, including representation. It calls for an expanded understanding of access to justice that incorporates the rights claims of marginalized individuals. Asking how lawyers representing marginalized clients can best advocate for their clients’ rights and achieve social change, it draws on the law and social change literature around legal mobilization.

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Tolu Lawal and Al Brooks

Volume 27.1 (download PDF)

Abstract

The Character and Fitness process is the last major institutional hurdle that aspiring attorneys must overcome to gain licensure to the legal profession. A process held out to determine “moral” character, the Character and Fitness often goes uninterrogated, instead flattened into just a quotidian and inconvenient aspect of the profession’s admission procedures. However, the normalization of both the process and existence of the Character and Fitness obscures the reality that this unscientific process neither has particularized, inherent value to the profession nor is an accurate tool of determining the moral or ethical principles of potential attorneys. Instead, the advocacy of racial justice organizers and the scholarship of critical legal theorists in recent years have exposed the true nature of the Character and Fitness as a tool of exclusion, which molds the legal field and law in the White man’s image.

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