Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process and Equal Protection Intersect

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the Rule ). Two primary exceptions to the Rule exist, and this Article identifies them as the Logical and Ill Motives Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives Exception applies when a law fails rational basis review because the sole purpose behind a law is an ill motive. The Rule and the Exceptions provide the Proper Methodology to be applied in intersection cases. The genesis for the Article arose in the context of analyzing the constitutionality of laws that ban marriage between persons of the same sex, popularly called gay marriage. Notwithstanding the fact that the right to marry is a fundamental right, confusion exists as to whether gay marriage bans are subject to rational basis review or heightened scrutiny. Some of the confusion exists because the Supreme Court has not decided where sexual orientation fits in the equal protection paradigm. But this void is responsible for only part of the confusion. This Article exposes another dangerous source of confusion-a tendency to allow popular discourse to shape the legal analysis in sexual orientation discrimination cases, resulting in what this Article calls the Collapsible Error. Courts commit the Collapsible Error when they conflate the equal protection question ( Are gays a suspect class? ) into the due process question ( Is there an underlying fundamental right? ) by defining the underlying right by the group targeted by the law-gay marriage-and then limiting the analysis to substantive due process ( Is there a fundamental right to gay marriage? ). This Article explores why committing the Collapsible Error is a denial of the due process and equal protection rights of gays because it results in an unjustifiable deviation from the Proper Methodology that is applied in cases involving other types of discrimination. Understanding and applying the Proper Methodology is not only a matter of judicial integrity, but it also is an opportunity to bring gays into the Constitution\u27s fold

Lessons From and For Disabled Students

The traditional understanding of disabled means to have a physical, mental, or emotional limitation. It is unfortunate that the word has negative connotations because we all have the ability to do some things and not others. An individual\u27s disabilities, traditional or otherwise, do not diminish the person or detract from the universal tenet that all people are inherently equal and entitled to be treated with dignity. Generally, it is unproductive to compare the circumstances of one group with another for the purpose of discerning which group has it better or worse. Struggles by different groups to achieve equality have different concerns and are entitled to be recognized independently and within broader contexts. Struggles for equality are just that: we all want to be equal human beings before the law

The Heart of Equal Protection: Education and Race

Brown vs. Board of Education established more than the unconstitutionality of the separate but equal doctrine in public education. Brown also gave the importance of education a constitutional dimension. Involuntary racial segregation creates a stigma wherever it exists which indisputably affects all children\u27s self-esteem by possibly undermining that of children of color and by artificially inflating that of White children. Unfortunately, more recent cases that raise questions about the right to a public education seem less willing to acknowledge the importance of education and the importance of integration in public education. Since Brown, the Court has held repeatedly that education is not a fundamental right. Ironically, the educational equality aspect of Brown seems to be diminishing in importance in cases quite similar to it -- cases where the children being denied equal educational opportunities are disproportionately children of color and poor children. Moreover, the Supreme Court\u27s decision in Missouri v. Jenkins sends the resounding message that integrating public schools is no longer a priority. Jenkins and the other post-Brown decisions seriously undermine our commitment to both racial equality and educational equality as announced in Brown. The concept of emotional intelligence offers a way to gain a better understanding of race relations. Emotional intelligence, broadly defined, is a way to describe how well a person is able to manage his or her emotions in different situations. Someone with high emotional intelligence, for example, has a solid understanding of his or her own emotions, but also is adept at being able to read the emotions of others and empathize with them. Developing children\u27s emotional intelligence provides hope that they will be able to achieve and sustain healthy race relations, which, in turn, will translate into a more equal society. A full set of emotional talents cannot be gained in the context of segregation. Insights into the connections between education and emotional intelligence can be helpful in understanding and healing racial divisions in our society, and in providing a means to eliminate some of the forces that contribute to social, economic, and racial inequality. If the goal is to achieve racial equality and to use emotional intelligence skills to help achieve that goal, involuntarily segregated schools hinder progress toward the goal

Prenatal Caretaking: Limits of State Intervention with and without \u3ci\u3eRoe\u3c/i\u3e

With or without Roe, difficult questions regarding the state\u27s role in prenatal caretaking remain. Unless the Supreme Court addresses the assumptions underlying the abortion controversy, overruling Roe would not resolve the problem of allocating decisionmaking responsibility between the woman and the state during the woman\u27s pregnancy. Fundamental constitutional questions about life and death, parental authority over the fetus, and the scope of the woman\u27s right of privacy outside of abortion have not been answered by the Supreme Court

The Anticanonical Lesson of \u3ci\u3eHuckleberry Finn\u3c/i\u3e

Some books included in the canon of American literature no longer belong there, because they presently lack normative approval. Adapting concepts found in constitutional law, an anticanon of American literature functions the way the anticanon of constitutional law would operate and explicitly removes books from the canon. In law, the anticanon identifies outdated interpretations of the constitution. In education, it is time to consider removing from the canon and placing in an anticanon books that are inconsistent with multicultural education. One such book is Mark Twain\u27s Huckleberry Finn, which is part of the canon of American literature and viewed as the quintessentially American book. However, because most teachers do not question the view that the novel is antiracist, they are unable to present it in a way that promotes multicultural education even though they think they are accomplishing this goal by studying the book. The value of Huckleberry Finn is not that it is an antiracist novel worthy of canonization. Rather, the value of Huckleberry Finn lies in its anticanonical lesson: White society should no longer accept the normative value of the novel\u27s message, a message that is far more complex and racist than whites understand

Emotional Segregation: Huckleberry Finn in the Modern Classroom

This paper explores the harm of teaching The Adventures of Huckleberry Finn in public school classrooms. Such harm can be broadly described as emotional segregation, which occurs when society sanctions disrespect. To illustrate the effects of emotional segregation, this article explores the reaction Black students and parents have to the novel to that of White students and parents. White students eagerly imagine being Huck and going on his adventures. Black students, however, cannot and should not even be asked to try to imagine being Huck and betraying their racial identity. But then who are the Black students supposed to identify with as their White classmates enjoy the book? Jim, a slave? Is that healthy for Black students? What message does that teach children about race relations? This article explores emotional segregation in a narrow context: emotional segregation of children based on race in public school classrooms, using Huckleberry Finn to develop the concept because of the novel\u27s canonical status and widespread use in public schools. Should we remedy emotional segregation based on race? Emotional segregation may be considered solely a remnant of the legal subordination of Blacks under de jure segregation: a social harm model. Emotional segregation may be considered a continuing social and legal harm that is traceable to de jure segregation: a legal harm model. A legal harm model acknowledges that social and legal inequality are linked, and presupposes that legal remedies should exist to address the inequality. A legal harm model could define emotional segregation as a tort (emotional abuse) or as a violation of the constitutional right to equal protection, if caused by a state actor. It is important to stop emotional segregation as quickly as possible. This article invites scholars and practitioners to gain a better understanding of emotional segregation and help develop and promote a legal harm model

Emotional Segregation: Huckleberry Finn in the Modern Classroom

In this article, I explore emotional segregation and how it functions in the context of Huckleberry Finn for both personal and academic reasons. Recently, I read Huckleberry Finn because it had been assigned to my daughter\u27s middle school class. I was concerned for her welfare because she is Black and worried how the book would affect her. To understand her reactions, I had to understand the controversy surrounding the book, particularly as a White mother I have reflected quite deeply on the question whether the book is racist. I define racism as a belief in the myth of White superiority and Black inferiority, also known as the race precept. 1 I conclude that Huckleberry Finn is racist. Undoubtedly, my conclusion reflects my experience as a White mother of a Black child. Without those experiences, it is possible my whiteness would not have allowed me to understand why and how teaching the book creates emotional segregation

Talking About Race and Equality

Lots of people of different races are increasingly uncomfortable talking about race. They prefer to function in a colorblind society where they insist that race is irrelevant. Not surprisingly, the concept of racial silencing is consistent with the concept of colorblindness. Logically, it seems impossible to talk about race if we are not even supposed to see it. The idea seems to be that if people who believe in racial equality magically stopped seeing and talking about race they could avoid the negativity surrounding racial issues and just hope that the inequality would fix itself. But we know that if we do nothing to address the problem, then little, if anything, is likely to change. As an equality-minded and caring society, we should create safe spaces to talk about race