Title IX of the Education Amendments Act of1972 (Title IX) prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance and ensures that federal funds are not used to support discriminatory practices. Independent, non-public, educational institutions try to escape compliance with Title IX, claiming they do not receive federal financial assistance and are not subject to Title IX. While they may not receive a direct federal grant or loan, many of these independent schools are organized as nonprofits and are exempt from federal income taxes pursuant to section 501(c)(3) of the Internal Revenue Code. As a result, these schools save significant amounts of money that they would otherwise have to spend on taxes, while diminishing the federal government's tax revenue. There is an open question as to whether an educational institution's 501(c)(3) tax-exempt status constitutes federal financial assistance and triggers Title IX liability. In July 2022, two federal district courts found that independent schools were subject to Title IX based on their 501(c)(3) status. However, in April2024, the Fourth Circuit became the first federal appellate court to consider this question and found that a school's tax exempt status does not constitute ,,Federal financial assistance" and thus does not make it subject to Title IX. This Note argues that educational institutions that maintain tax-exempt status do in fact receive federal financial assistance by virtue of the tax benefit they receive and must comply with Title IX. After presenting the split in opinion on whether tax-exempt status triggers liability under Title IX, this Note conducts a statutory analysis of ,,Federal financial assistance." This Note first considers the text of the statute, applying various tools ofstatutory analysis to conclude that the plain text of Title IX extends to tax-exempt organizations, including tax-exempt schools. This Note also uses legislative history to further discern congressional intent and demonstrate that Congress intended Title IX to be afforded a broad scope and should not be limited to exclude taxexempt status.
Millions of people owe money to the government as a consequence of a criminal charge. But while some of that debt is tied to fines or restitution, much of it is levied as fees, or payments owed to the government for the administration of a defendant's criminal proceedings. Criminal fees can include costs assessed for pretrial detention, a public defender, a jury, a court appearance, filing a document, electronic monitoring, and more. They are assessed at every stage of a criminal case and for all types of offenses. While state and local governments claim that criminal fees are necessary to fund the administration of justice, most defendants cannot pay, bringing a slew of additional consequences. This Note suggests that the Excessive Fines Clause of the Eighth Amendment, recently revived by the U.S. Supreme Court in Timbs v. Indiana, prohibits the assessment of criminal fees. Financial penalties imposed as punishment for a criminal charge, without regard for the cost incurred by the government or the defendant's ability to pay, are both punitive and excessive. Many fees infringe on criminal defendants' other constitutional rights the very problem the Excessive Fines Clause intended to remedy. Federal and state courts have been slow to meaningfully implement Timbs. This Note critiques those court's post-Timbs decisions and advocates for a different approach to Excessive Fines Clause claims. In the meantime, this Note proposes that state legislatures take up the mantle of reform to bridge the gaps left by the courts. Some state legislatures have already begun eliminating criminal fees over the last few years without undercutting their budgets. This Note surveys and compares state laws and offers suggestions on implementation. By continuing to identify and remove excessive fees, states can prioritize the fair administration of justice, from policing to prosecution.
Strip and body-cavity searches are among the most egregious invasions ofpersonal privacy that the government can impose. The Fourth Amendment, as interpreted by the Supreme Court, demands that courts thoroughly analyze these searches. Courts must consider not only the suspicion that warranted the search, but the way the search was performed. But in the prison visitor context, U.S. Courts ofAppeals have not done so. Instead of evaluating whether the search in question was conducted reasonably, including reasonableness in scope, courts have considered only whether prison officials possessed reasonable suspicion. This flies in the face ofSupreme Court precedent. This Note advocates for something better. It examines three approaches to Fourth Amendment analysis utilized by U.S. Courts ofAppeals in the prison-visitor context. Among these options, this Note advances the Eleventh Circuit & Ecirc;s approach, a totality-of-the-circumstances inquiry that captures the whole picture: the suspicion to warrant the search and the way the search was performed. By adopting this approach, courts can remain faithful to Supreme Court precedent and vindicate the constitutional rights ofprison visitors.
The National Football League's (NFL) decision to grant NBCUniversal's Peacock streaming service exclusive rights to carry the 2023-24 wild-card matchup between the Kansas City Chiefs and the Miami Dolphins signaled a major shift in the league's media distribution strategy. Football fans that had long depended on free, over-the-air broadcasts for the most pivotal games of the year suddenly discovered that they had to subscribe to, and pay for, a streaming service they otherwise did not want or need. The migration of live sports programming away from conventional broadcast networks touches on more than subscription fatigue and rising credit card statements. The advertising dollarsgenerated byhigh-profile NFL games are critical to the over-the-air broadcasters that provide essential public interest programming such as local news, weather updates, and emergency alerts. This Note analyzes the NFL's exclusive streaming agreements through the lens of federal antitrust law. It argues that these agreements would probably survive a challenge under section 1 of the Sherman Act. First, the Sports Broadcasting Act's antitrust exemption for ,,sponsored telecasting parts per thousand likely encompasses streaming services. Second, the U.S. Supreme Court's 2010 decision in American Needle, Inc. v. National Football League suggests that the NFL's exclusive streaming agreements would withstand a rule ofreason analysis. Finally, the common law ancillary restraints doctrine provides yet another basis for a court to uphold these agreements. Given the probable success of the NFL in the event ofa challenge brought under section 1, this Note proposes that Congress amend the Sports Broadcasting Act to effectively codify the league & Ecirc;s longtime distribution strategy of providing free, over-the-air broadcasts of the games that matter most to fans and broadcasters alike.
Since issuing its 1968 landmark decision in Pickering, which first recognized that the First Amendment protects government employees’ speech about matters of public concern, the U.S. Supreme Court has proceeded to whittle away First Amendment protections for government employees. The Justices have done so by adopting a series of categorical exclusions to Pickering that all strongly favor the government as an employer and manager. These subsequent decisions have created a jurisprudential obstacle course that government employees must successfully run in order to invoke the Free Speech Clause at all. The current U.S. approach plainly is bad. However, it could be even worse – it could be ugly. In Australia, the High Court has given the government a green light to censor any and all government employee speech under viewpoint-based speech regulations. Thus, in today’s Australia, it’s perfectly fine for a public servant to praise the government, but not to criticize it. By way of contrast, in Canada, no categorical exclusions exist on the scope of constitutionally-protected government employee speech and the government must always be prepared to justify disciplinary actions based on a government employee’s speech activity. Canada’s approach is good – and clearly better than either the U.S. or Australian doctrines. By taking context fully into account, Canada’s government employee speech doctrine allows for courts to consider carefully how to reconcile the three competing interests at stake (namely, the government’s interest as a manager of its workforce, government employees’ autonomy interests as would-be speakers, and the collective interest We the People possess in access to government employee speech in general and whistleblowing speech in particular). Canada has built a better mousetrap; the federal courts should seriously consider reforming the Pickering/Connick/Garcetti framework to more closely resemble the Supreme Court of Canada’s holistic approach.
Since October 7, 2023, public and private actors have doubled down on efforts to securitize the American university. In large part, these initiatives aim to quash a vocal pro-Palestine movement that has become highly visible across U.S. campuses since October 7th. In targeting this group, these efforts have variously treated the university as an ,,object" of national security, namely, as a potential site ofnational security risk, while simultaneously encouraging or pressuring universities to ,,participate" in national security, namely, by actively and, in many cases, voluntarily furthering U.S. national security objectives. The university's status as object ofand participant in national security has a long history, dating back to World War II and continuing in relatively unbroken fashion to the present moment, at least until recently. This Article examines the university's historical relationship to the U.S. national security state-as both object of and participant in national security-and situates current efforts to securitize higher education against that backdrop. While this recent securitization drive has accelerated and expanded since President Donald Trump took office in January2025, this Article focuses on the origins of those efforts during the last fifteen months of the Biden administration. In doing so, this Article demonstrates how this recent chapter in the university's securitization comports with endemic trends in U.S. national security, which include the maintenance of U.S. global hegemony; the anti-Palestinian animus at the heart of U.S. counterterrorism laws; a tendency to create ,,enemies parts per thousand; and the important role of private parties in shaping U.S. national security law and policy. Together, this analysis demonstrates that, rather than beingab-errational, this current moment in the university'ssecuritization is an unsurprising and predictable consequence ofhow U.S. national security has long operated.
State laws that aim to shield providers of reproductive health and gender-affirming care from the punitive actions of out-of-state officials raise thorny questions. Can the federal courts, Congress, or the Trump Administration require New York officials to enforce a Texas ban on abortion or gender-affirming care against a New York doctor who prescribed medication to a patient in Texas via telehealth? If so, how might New Yorkers & Ecirc; access to health care be affected? Ifnot, will interstate commerce and travel preserve some degree ofaccess for Texans? Disputes over reproductive health and gender-affirming care are puttingnew pressure on doctrines that define the scope, limits, and purposes of the sovereignty of each state in relation to the federal government, to its sister states, and to the populace it is responsible for protecting. Judges called on to resolve these disputes will need to engage in careful line drawing with respect to doctrines that empower states to protect public rights, obligate states to give full faith and credit to certain acts and judgments of other states, and limit federal power to regulate states as states. This Article contributes to discourse on horizontal federalism, state powers and duties, and the public-private divide by developing principled and complementary interpretations offull faith and credit requirements for states and anticommandeering and anticoercion limits on federal power that share a foundation in the doctrine of parens patriae. It argues that judges, advocates, and legal scholars should understand parens patriae as a broad doctrine recognizing the coequal sovereignty ofstates, in relation to each other, as protectors ofdistinctively public, collectively held rights within their borders, rather than being confined to its best-known application as a doctrine giving states Article III standing to sue in federal courts. This Article proposes the following definition ofparens patriae as it has been used by the Supreme Court in relation to constitutional federalism, divided into numbered elements for the purposes of explaining and substantiating this Article's claims: A (1) state government, (2) acting through any of its three branches, performs a constitutionally significant role as parens patriae when it (3) asserts or defends its interest as a sovereign government co-equal to its sister states (4) in protecting its populace at large from harms that are widespread and not exclusively traceable to identifiable individuals who have capacity to vindicate their own interests (5) against private parties or sister states, but not against the federal government to protect the state's populace from the operation of federal law. When read in this broader context, the Court's parens patriae precedents offer an untapped source of guidance for understanding the role states play in shielding their residents from harm, including, but not exclusively, with respect to reproductive health and gender-affirming care.
Our pooled consumer big data, such as the pictures we post or the location history and keyword search trails we leave, are generating new ways to solve crimes. Much of the commentary on big data search strategies such as keyword, geofence, and facial recognition searches fixate on Fourth Amendment search and seizure issues rather than evidentiary safeguards. This Article breaks new ground by framing evidentiary guardrails for big data searches to reduce the harms of erroneous arrests, redress secrecy, and counteract the mystique of machine infallibility. Advancing beyond over-reliance on Fourth Amendment doctrine, this Article illuminates how evidence law and procedures are better suited to address concerns over inaccuracy, over-breadth, and opacity surrounding big data search strategies. The Article offers three proposals. First is requiring corroboration before big data search strategies can be the basis to arrest or convict a person, thus updating the concept of probable cause for changing technologies of proof. Second are pretrial notice, disclosure, and reliability hearings to pierce the secrecy surrounding the use of big data search strategies and to permit effective defense challenges. Third is deploying expert witnesses on the reliability concerns surrounding the evidentiary fruits of big data analytical techniques to correct the mystique of machine infallibility and the risk of factfinders overweighing match evidence.
It is unclear whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from differentiating between people based solely on their sexual orientation and/or gender identity. This Note analyzes the Supreme Court's tiers of scrutiny-rational basis review, intermediate scrutiny, and strict scrutiny-to argue that a new suspect class is warranted for sexual orientation and gender identity (SOGI), triggering strict scrutiny for SOGI classifications. This analysis shows that a united SOGI class meets all of the characteristics associated with suspect classes, including a history of anti-LGBTQIA+ discrimination and the irrelevance between SOGI and one's ability to contribute to society. This Note highlights the importance of uniting sexual orientation and gender identity into a single suspect class and presuming that any government actions on these bases are unconstitutional.
In a trio of environmental cases-West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo-the Roberts Court curtailed the federal regulatory power and produced corresponding deregulatory outcomes under seemingly neutral legal principles. This Article interrogates the doctrinal coherency of the Roberts Court's jurisprudence by applying the rationales of these cases to climate change litigation. Climate change policies advanced by state and local governmental plaintiffs represent the inverse of what the Court has previously rejected. The regulatory burdens arise under state, not federal, law. In this analysis, the Article advances a previously undertheorized aspect of the trio's combined effect: These cases diminish the federal preemption power. A diminished federal preemption power, in turn, creates space for environmental regulatory action at the state and local levels to flourish. Federal preemption challenges to climate suits thereby juxtapose the deregulatory outcomes of West Virginia, Sackett, and Loper Bright with the separation of powers and federalism principles ostensibly advanced by the Roberts Court in those cases.
