Supervised Release, Sex-Offender Treatment Programs, and Substantive Due Process

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest

Tradition as Past and Present in Substantive Due Process Analysis

Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases under the substantive due process clause. Some conservative Justices say that substantive due process protects only rights that were firmly established when the Constitution was ratified. In contrast, some liberal Justices dismiss tradition as being too stagnant and oppressive to serve as a limit on substantive due process rights, relying instead on contemporary norms and reason. Both of these approaches share an oppositional view of past and present, and permit little opportunity for deeper, searching inquiry into what liberty interests are so deeply embedded in this Nation\u27s identity that they should be protected by the U.S. Constitution. The Essay presents a richer, interactive understanding of tradition as a continuity between past and present. Tradition represents what elements of our evolving past we wish to own in the present. The Essay explores this alternative view of tradition using as exemplars some judicial opinions in the substantive due process area, largely from the Court\u27s center. It argues that tradition does not deserve a place in substantive due process analysis simply because it represents a fixed truth from some distant past, nor should tradition be entirely rejected as a source of substantive due process rights simply because of its connection to the past. Understood as a source of our identity that is both inherited and changing, tradition can serve as a constructive focal point for determining substantive due process rights

Time to Bury the Shocks the Conscience Test

The Supreme Court has acknowledged that the Due Process Clause, like its forebear in the Magna Carta, was \u27intended to secure the individual from the arbitrary exercise of the powers of government\u27...to prevent governmental power from being \u27used for purposes of oppression.\u27 1 Historically, Magna Carta was aimed a·t limiting the power of the king. Today, substantive due process is invoked to challenge arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive power. In 1998, in County of Sacramento v. Lewis, it held that the criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue. 2 Whereas legislative enactments are subject to varying levels of scrutiny depending on the nature of the rights at stake, the Court asserted that only the most egregious executive misconduct, that which shocks the conscience, will be actionable.3 Since 1998, Lewis has created significant confusion and division in the appellate courts, severely restricting the ability of detainees, students, government employees, and landowners, to bring substantive due process challenges to the arbitrary exercise of power. Some circuits have required that litigants prove that executive misconduct both infringe on a fundamental right and shock the conscience. Because neither employment nor property are regarded as fundamental rights, most allegations of arbitrary treatment brought by government employees and landowners are dismissed. Other appellate courts allow substantive due process challenges to the deprivation of non-fundamental property or liberty interests only where the litigant demonstrates the inadequacy of state law remedies, thereby permitting the vagaries of state tort law to determine the fate of constitutional claims. Further, the appellate courts have interpreted the shocks the conscience\u27\u27 test to impose a draconian standard, mandating, for example, that detainees demonstrate unnecessary and wanton infliction of pain or that students prove intentional malice or sadism in order to challenge excessive, unwarranted corporal punishment. The thesis of this Article is that the \u27shocks the conscience test, which is founded on a false dichotomy between substantive due process challenges to executive and legislative action, should be rejected. First, it is historically untenable. The core concern of Magna Carta, the source of substantive due process, was to limit executive abuse of power. This was the understanding of those who framed and ratified the Due Process Clause. Thus, it is counterintuitive to make it more difficult for plaintiffs to challenge executive misconduct. Second, Lewis rests on shaky precedent and has not been consistently adhered to by the Supreme Court in subsequent cases. Third, the concern cited by the Court to justify a more stringent standard for executive action fear of converting § 1983 substantive due process claims into a font of tort law is unfounded and exaggerated. Section 1983 should not drive constitutional interpretation, and immunity defenses already significantly insulate government officials and entities sued for § 1983 damages. Fourth, the numerous circuit conflicts demonstrate that the test has proven to be an unworkable analytical tool. To restore substantive due process as a meaningful safeguard against arbitrary abuse of government power, Lewis should be overturned. Recognizing, however, the concerns of subjectivity and unbridled discretion that have surrounded the substantive due process conundrum, this Article proposes a new test with specific criteria, extrapolated from various Supreme Court and appellate court decisions, to guide courts in determining when government misconduct should be viewed as an unconstitutional abuse of power. ---------- 1 Daniels v. Williams, 474 U.S. 327, 331 (1986) (citations omitted). 2 County of Sacramento v. Lewis; 523 U.S. 833, 846 (1998). 3 Id

Racing on Two Different Tracks: Using Substantive Due Process to Challenge Tracking in Schools

Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this legal framework does not currently provide much relief for students in schools without a history of intentional discriminatory practices. Alternatively, the Due Process Clause can potentially provide another framework for plaintiffs to challenge tracking. Though the Supreme Court has rejected a fundamental right to education, it has recognized the possibility of a fundamental right to a minimally adequate education. Furthermore, other state constitutions have recognized a fundamental right to education or at least a minimally adequate education. According to the standards that currently govern the doctrine for a minimally adequate education, social science evidence focused on tracking’s impacts shows that this educational practice likely violates that right. Challenging tracking in states that recognize such rights under a substantive due process claim may provide a more effective litigation strategy

Selective Use of the Executive Immunity Power: A Denial of Due Process?

Attacks on the government\u27s power to grant immunity to cooperative witnesses have been premised on several grounds, including the due process clause of the fifth amendment. It is upon this clause that the United States District Court of the Southern District of New York based a decision that a defendant was denied due process when the government refused to immunize him after granting immunization to its own witnesses. This article examines traditional arguments against challenging a prosecutor\u27s immunity discretion, the procedural and substantive factors necessary in substantiating a defendant\u27s due process claim, and the effect of immunization on the government\u27s burden of proof in future prosecutions

Electoral Due Process

Elections and their aftermath are matters left to the states by the U.S. Constitution. But the Supreme Court has made clear that the right to vote is federally protected, and fiercely so. When an election failure takes place and deprives citizens of their votes, challengers must resort to state law remedies. Many states have procedural requirements for election challenges that are stringent to the point of being prohibitive. This Note argues that the due process concerns raised by these burdensome state procedures are amplified by their voting rights context. Where a voter must take to the courts to vindicate her right to vote, she should not be further deprived by an unfair process. Federal courts hearing cases about unfair election-challenge procedures have been reluctant to interfere and are thus overly deferential to the states. This Note offers a new approach for “electoral due process” claims—an approach that is properly preservative of voters’ substantive rights and their rights to a fair hearing

John Moore Jr.: \u3ci\u3eMoore v. City of East Cleveland\u3c/i\u3e and Children’s Constitutional Arguments

This Article is divided into three parts. First, I retell the story of Moore from John Jr.’s perspective and frame his potential claims. Second, I explore constitutional arguments under existing doctrine, using contemporary equal protection and substantive due process analyses. Finally, I suggest how a children’s rights perspective might be even more persuasive as a strategy for John Jr. as well as for achieving opportunity and equality on behalf of contemporary children living amid and affected by structural inequalities that impact their developmental capacity