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Towards a Balanced Approach for the Protection of Native American Sacred Sites
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a "substantial burden" under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites. In this Article, I first explore whether the Ninth Circuit's definition of "substantial burden" is mandated under RFRA. To a large degree, this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of "substantial burden," the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution. The legislation proposed is a compromise between the needs of Indian religious practitioners and those who argue that religious practitioners should not have a veto over how federal lands are used and developed. Therefore, in return for the broadening of what can constitute a substantial burden on free exercise rights, the Article recommends the adoption of an intermediate type of judicial scrutiny. The Article also discusses ways to limit what can be considered sacred sites under the legislation so as to ensure protection of sites vital to Native American culture and religion without unnecessarily burdening federal management of federal lands.Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard at the commencement of litigation, evaluating the plausibility of claims before discovery - before evidence has been gathered and presented. This highly subjective pleading standard applies to all claims, including claims of discrimination by members of stereotyped groups. In short, under Iqbal, federal courts must grapple at the inception of litigation with deciding whether members of stereotyped groups have pleaded plausible claims of discrimination, relying on their intuitions and common sense, rather than evidence. The nature of this new pleading standard raises pressing and profound questions about the psychology of judging: Might Iqbal rest on a flawed theory of judgment and decision making? Can judges draw on common sense, rather than evidence, to adjudicate claims of discrimination by members of stereotyped groups without the subtle effect of implicit bias? This Article sheds light on these questions by drawing on social psychological research. From findings in the field of social psychology, the Article first forms hypotheses and then conducts an empirical legal study that closely examines how federal courts have adjudicated motions to dismiss Black plaintiffs' claims of race discrimination.“The Prejudice of Caste”: The Misreading of Justice Harlan and the Ascendency of Anticlassificaiton
This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns to the nineteenth century to offer an alternative reading of the opinion. It argues that by time Harlan invoked the caste metaphor in Plessy, the caste metaphor was part of a longstanding tradition of reasoning about the moral stakes of status hierarchy and social subordination. It examines the emergence, in the nineteenth century, of the image of caste in abolitionist rhetoric and in debates over the ratification of the Fourteenth Amendment during Reconstruction. The Article further challenges the conventional reading of Harlan's dissent, by considering the persistence of the caste metaphor in the context of Brown v. Board of Education and its aftermath.Rethinking Customary Law in Tribal Court Jurisprudence
Customary law still appears in many of the decisions of American state and federal courts. Modern courts rely less on customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, with statutory and administrative law dominating the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the ancient customs and traditions of the people. But this development of applying customary law in tribal courts is new and undertheorized. For the first time, this Article attempts to provide an adequate theory as to how tribal judges should find and apply customary law on a normative level. This Article argues that tribal judges have a great deal to learn from H.L.A. Hart's theory of primary and secondary rules.The End of Preclearance as We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act
This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition of purpose thrown out by Bossier II. The authors believe that the analysis in the following pages provides critical evidence for the debate over reauthorization and revision of the Voting Rights Act.Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis
This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth Amendment.The Diversity Rationale: Unprovable, Uncompelling
Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.A History of Hollow Promises: How Choice Juisprudence Fails to Achieve Educational Equality
This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms and education policy initiatives to address the scope of the problem of educational inequalities. This essay contextualizes the issue to demonstrate how policies have reinforced a dominant narrative about race that is counter to the goal of ending educational disparities and continues to harm individuals and communities of color even as they try to respond to these issues.After Georgia V. Ashcroft: The Primacy of Proportionality
This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. In Shirt, American Indians in South Dakota suffered a history of voting discrimination, racially polarized voting, and a dearth of safe districts; while in Session, Blacks and Latinos in Texas at least possessed a larger proportion of safe districts. What emerges from the comparison, then, is the tendency of proportionality to neutralize history and polarization. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations—details closely related to how proportionality is measured. Finally, Part III discusses substantive representation, the ideology that drove much of Ashcroft's analysis. Framing it as a symptom of nonpolarized voting, this Note concludes that endorsement of substantive representation as a device to achieve colorblindness will obscure the causes of polarization.Justifying the Disparate Impact Standard Under a Theory of Equal Citizenship
Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale to justify affirmative action in higher education admissions programs. It concludes by pointing out the inadequacies of alternative effects-based theories. Part III makes the case that an equal citizenship theory, based on a moral interpretation of the Fourteenth Amendment, best justifies the disparate impact standard. Finally, Part IV confronts some of the institutional issues underlying the equal citizenship theory as a justification for the disparate impact standard and suggests that Congress should have power under Section V both to interpret the Equal Protection Clause and to enact legislation that promotes equal citizenship.
