Emory Law Journal

Volume 68Issue 6

Partisan Gerrymandering and the Constitutionalization of Statistics

Jacob Eisler | 68 Emory L.J. 979 (2019)

Recent partisan gerrymandering litigation has relied heavily on statistical metrics to identify constitutional violations. If this trend continues, quantitative analysis could become the crux of constitutional analysis. This Article describes how constitutional law founded on numerical thresholds transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights founded in moral principles, not to advance alternative policy arrangements. Yet if quantitative outcomes are used to define rights, courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake. Courts should approach the problem of partisan gerrymandering using a principle-based approach, and identify constitutional violations when legislatures seize partisan advantage in democratic process.

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Coerced Choice: School Vouchers and Students with Disabilities

Claire Raj | 68 Emory L.J. 1037 (2019)

The landscape of public education, once thought to be a core function of the state, is shifting towards privatization with the expansion of vouchers and tax credits that use public dollars to fund private school tuition. This Article focuses on the impacts of such programs on students with disabilities. It argues that voucher legislation, as applied to students with disabilities, violates two principles of constitutional law: the unconstitutional conditions doctrine and equal protection. The unconstitutional conditions doctrine limits government’s authority to require individuals to forgo their rights in exchange for a gratuitous benefit. Vouchers cross those limits, coercing students into accepting a restriction of significant rights to escape failing public schools. Voucher programs, motivated by a desire to eliminate the costs and burdens associated with educating students with disabilities, stumble into an equal protection problem because they target students with disabilities for disadvantage without sufficient justification.

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“A Fresh Look”: Title VII’s New Promise for LGBT Discrimination Protection Post-Hively

Devon Sherrell | 68 Emory L.J. 1101 (2019)

In 2017, the United States Court of Appeals for the Seventh Circuit, in Hively v. Ivy Tech Community College, became the first U.S. circuit court to hold that Title VII prohibits employers from discriminating against individuals in employment on the basis of sexual orientation. Given that many federal antidiscrimination statutes are interpreted in line with Title VII, the Hively decision may extend sexual orientation discrimination protections to a variety of areas. However, since the Supreme Court’s decision in Burwell v. Hobby Lobby now allows private businesses to seek religious exemptions under RFRA, it is possible that private businesses might seek to avoid complying with Title VII’s sex discrimination prohibition on the basis of religious objection. This Comment examines the relationship between Title VII and RFRA and argues that expanding the Hively court’s interpretation of Title VII is the most promising method for protecting against sexual orientation discrimination nationwide.

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Trinity Lutheran Church v. Comer: Playing “in the Joints” and on the Playground

Gabrielle Gollomp | 68 Emory L.J. 1147 (2019)

In Trinity Lutheran Church of Columbia v. Comer, the Supreme Court determined that a state could not deny a church generally available benefits because of its religious character. Before Trinity Lutheran, the Supreme Court consistently recognized the existence of a “play in the joints” between the Establishment Clause and Free Exercise Clause, meaning some state government actions are neither prohibited by the Establishment Clause nor required by the Free Exercise Clause. Issues concerning tax exemptions and state funding are consistently held to fall within the “play in the joints,” which permits state and local governments to refuse to fund religious institutions, even if funding would be constitutionally permissible. This Comment argues that the Trinity Lutheran decision is problematic and Locke v. Davey is the proper interpretation of the relationship between the First Amendment religion clauses and state funds, as it recognizes the importance of federalism and leaves state tax issues sub-constitutional.

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