Bringing Disability into Constitutional Law Discussions

By Professor Michael Waterstone
 
This was originally posted on American Constitution Society for Law And Policy as part of their 2015 Constitution Day Symposium.

Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

Can Birthright Citizenship be Repealed?

By Adjunct Professor Don Warner

This op-ed originally appeared in the Sept. 14, 2015 edition of the Los Angeles Daily Journal.
Several candidates for the Republican nomination in the 2016 presidential election have adopted as a policy the elimination of so-called "birthright citizenship" for children of illegal aliens born in this country. How could this be accomplished? To find out, let’s engage in a thought experiment.

The first barrier, as almost everyone agrees, is this language in the 14th Amendment to the U. S. Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

So we'll pass an amendment modifying that language. Can a subsequent amendment amend an amendment? The 21st Amendment repealed the 18th entirely, ending the "experiment" of alcohol prohibition. So, no problem here.

Our new amendment could modify the language in Section 1 of the 14th to add a proviso: "Provided that, no person both of whose parents, at the time of such person's birth, were…” Illegal aliens? Undocumented workers? Vague and ambiguous. Let's use one of a drafter's best tricks, negative language: "were not legally present in the United States."

Youth Justice Education Clinic Fall 2015 Updates

By Professor Michael Smith, Youth Justice Education Clinic Director

The Youth Justice Education Clinic (YJEC) was originally conceived six years ago to serve the education advocacy needs of the Juvenile Justice Clinic, and that continues as one of our core missions, we are now taking community referrals from families and students who may benefit from our comprehensive education and disability advocacy.  We currently have approximately 50 active clients, from 4 through 20 years old, many with multiple legal issues.  

While much of our legal advocacy focuses on special education law (eligibility, placement, services, and compensatory services awards), we also have the expertise to provide advocacy, and regularly do so, in the following related areas: general education discipline, including suspensions, expulsions, and illegal non-voluntary transfers; school enrollment issues, usually based on illegal denial of enrollment due to homelessness, probation status, disability, and credit deficiency; Regional Center (eligibility, placement, and services) advocacy for the developmentally delayed; school based discrimination based on disability, race, sexual orientation, gender identity, gender expression, homelessness, religion, and poverty; and, if necessary, federal and state court litigation for monetary damages based on civil rights violations and tortious conduct.  Finally, it is not unusual, in the course of our work, to uncover school district (and other public entity) policies that do not comply with applicable laws.  When faced with the clear illegality of their policies, the school district will change, district-wide, how they deal with all their students.

Prof. Waterstone Comments on State Bar Mentoring Proposal

The California State Bar recently created a State Bar Attorney Mentoring Program designed to "further public protection through mentoring, education and the training of young lawyers to promote the pursuit of excellence, professionalism, and ethics in the practice of law."

Part of the pilot for this program includes asking members of the bar for public commentary in hopes of designing a program that would best fit the needs of California law students and their possible mentors. Professor Michael Waterstone's commentary appears below.

U.S. Dept. of Justice Focuses on Juvenile Justice

By Professor Kevin Lapp
 
This was originally posted on Juvenile Justice

The U.S. Department of Justice’s Civil Rights Division has recently been focusing some significant attention on the administration of juvenile justice.

In 2012, it released a report on the Shelby County, Tennessee juvenile justice system, finding that Shelby County’s juvenile justice system failed to provide constitutionally required due process for those accused of delinquency and failed to provide equal protection under law for accused African-Americans. Later that same year DoJ announced an agreement that included a series of corrective measures.

Prof. Caplan writes ACLU Amicus Brief in Religious Freedom Case

Prof. Aaron Caplan was the primary author of an amicus brief to the Fifth Circuit in Ali v. Stephens, a case involving the religious rights of prisoners. He teaches courses in Constitutional Law and First Amendment, including freedom of religion.

David Rasheed Ali is an observant Sunni Muslim who is incarcerated by the state of Texas. He has a sincere religious belief that he should grow a beard about as long as his fist (three or four inches) and wear a kufi (a white, seamless, knit cap with small holes) during the day. The prison's rules forbid this, even though the federal Religious Land Use and Institutionalized Persons Act of 2000 requires prisons to accommodate religious exercise unless there is a "compelling" reason not to. Even after the prison lost in the trial court, and after the US Supreme Court held earlier in 2015 that the Act required a prison in Arkansas to allow an inmate to grow a religiously-motivated beard, Texas nonetheless appealed to the Fifth Circuit.

Apple Loses Appeal in E-Books Antitrust Case

By Professor Jeffery Atik

This is an excerpt from Attraverso

Through a series of spectacular commercial moves, Apple succeeded in disrupting the e-book space upon its 2009 release of the iPad, sweeping away Amazon Kindle’s popular $9.99 pricing for new releases and for New York Times best-sellers. The iPad brought meaningful competition to Amazon’s wildly successful Kindle as an e-book platform; the emergence of this new distribution channel raised e-book prices, whether purchased on iPads or Kindles, seemingly defying an economic law of gravity. It was a coup that only a Steve Jobs could pull off. The e-book price shift attracted the attention of federal and state antitrust authorities. In 2012, the government brought a civil antitrust action against Apple and five major publishers. The book publishers settled, and the government proceeded in a price fixing claim against Apple. On June 30, a panel of the Second Circuit Court of Appeals upheld a federal trial court’s finding that Apple violated Section 1 of the Sherman Act.

Apple’s play in resetting the commercial terms of e-book distribution was brilliant, even if (as the courts have now determined) illegal. The Apple e-book case addresses some major issues in contemporary antitrust law. May a party, in a vertical relationship with a producers cartel, be found liable for price fixing? Does such a situation constitute a per se antitrust offense?

Read the full post on Attraverso