Berkeley La Raza Law Journal最新文献

{"title":"No Child Left Behind: Why Race-Based Achievement Goals Violate the Equal Protection Clause","authors":"Ayriel Bland","doi":"10.15779/Z38X67H","DOIUrl":"https://doi.org/10.15779/Z38X67H","url":null,"abstract":"No Child Left Behind (NCLB) was passed in 2002 under President George W. Bush with the goal of increasing reading and math proficiency for all children in the United States by 2014. However, as time progressed, meeting this goal appeared improbable. Many states reacted by using waivers to set race-based achievement standards, differentiating proficiency goals among student subgroups,2 including racial minorities. This note argues that race-based proficiency goals violate the Equal Protection Clause of the Fourteenth Amendment. While race-based achievement goals may serve a compelling state interest in promoting educational proficiency, ultimately these goals are not narrowly tailored to achieve that interest and thus fail strict scrutiny. In part, these race-based goals are not narrowly tailored due to the potential negative psychological effects they cause minorities, particularly African and Latino Americans. Race-based standards act as state-approved stamps of inferiority on particular minority groups, which will likely have detrimental effects on their self-esteem3 and performance on 4 standardized tests. Part I provides a short history of NCLB, including some of the educational problems Congress targeted and the states' methods of implementing NCLB. Additionally, Part I explains how states have used waivers to escape their students' inevitable failure to meet NCLB's complete proficiency and also discusses the rise of race-based achievement goals by presenting arguments for and against these goals. Part II argues that race-based goals violate the Equal Protection Clause because they are not the narrowest means of achieving NCLB's proficiency requirements, which I support with psychological studies on African-American students. Lastly, Part III briefly introduces many equally-effective alternatives to race-based achievement","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114906152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"HIV Exclusion of Immigrants under the Immigration Reform & Control Act of 1986","authors":"Bettina M. Fernandez","doi":"10.15779/Z38SQ1B","DOIUrl":"https://doi.org/10.15779/Z38SQ1B","url":null,"abstract":"","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"30 12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132302505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Undone by Law: The Uncertain Legacy of Lau v. Nichols","authors":"R. Moran","doi":"10.15779/Z38J94M","DOIUrl":"https://doi.org/10.15779/Z38J94M","url":null,"abstract":"A lthough there has been widespread celebration of the fiftieth anniversary of Brown v. Board of Education, there has been relatively little recognition of the thirtieth anniversary of Lau v. Nichols. Brown rested on a finding that intentional segregation of public school students by race violates the equal protection clause of the Fourteenth Amendment. Lau pushes beyond a paradigm of intentional harm to attack exclusionary practices, whether or not motivated by a discriminatory purpose. The Supreme Court’s decision in Lau was based not on a constitutional wrong but on a violation of Title VI of the Civil Rights Act, as interpreted by the Office for Civil Rights (OCR). The statute, along with OCR’s interpretation, barred school practices that have the effect of excluding children from the educational process based on language, where language is a proxy for race. By finding a violation based on discriminatory effect, regardless of underlying intent, Lau greatly amplified the scope of civil rights protection. Today, that approach is under increasing attack, and the pressing question is how and if Lau will miraculously survive the undoing of its opinion. This article first provides a brief history of Lau and then examines how it has undergone a kind of ritual dismemberment in the courts. The article closes by exploring whether Lau’s undoing really matters in light of other federal protections. Although these protections continue to provide meaningful access to the courts for English language learners, none is a perfect substitute for the enforcement regime established under Lau. The Lau Decision The Lau case was filed on behalf of 2,856 Chinese-speaking students in the San Francisco school system who received instruction only in English. Although the school district offered special assistance to Spanish-speaking students, it did nothing to accommodate Chinese-speaking students. In demanding relief, the plaintiffs relied not only on the equal protection clause but also on Title VI as interpreted by OCR. The lower federal courts rejected both the constitutional and statutory claims. In refusing to intervene on the students’ behalf, the Ninth Circuit concluded that children arrived at school with “different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system.” In the Ninth Circuit’s view, the school was not required to rectify all of these differences and disadvantages. The United States Supreme Court reversed, relying heavily on OCR’s views about the scope of Title VI’s coverage. According to OCR, language could be a proxy for race, ethnicity, and national origin. Moreover, language policies that effectively excluded children from an educational program could amount to impermissible discrimination. In adopting OCR’s interpretation, the Court did not reach the constitutional question, nor did it order any specific remedy. Instead, the ","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130347369","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Voting Rights Reforms North and South: Life Becomes Tougher for Incumbents","authors":"M. Gelfand","doi":"10.15779/Z38J65W","DOIUrl":"https://doi.org/10.15779/Z38J65W","url":null,"abstract":"The first two quotations express the fears of incumbents facing the prospect of one-person, one-vote redistricting or racial vote dilution litigation that may disrupt their traditional constituency base. Indeed, as the third quotation explains, sometimes federal court intervention may result in substantial changes designed to increase political participation, especially on the part of minority groups. Yet, none of these reforms","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"273 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117036908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contemplating the WTO from the Margins","authors":"R. Gordon","doi":"10.15779/Z38G95B","DOIUrl":"https://doi.org/10.15779/Z38G95B","url":null,"abstract":"The World Trade Organization (WTO) is an increasingly powerful and sophisticated organization that is at the center of both the world trade system and what is often posited as the inexorable tide of globalization. Its membership is nearly universal, 1 and unlike international financial institutions such as the World Bank, it has a more democratic governing structure where each nation has a vote and decisions are made by consensus. The vast majority of its Members are the poor and unindustrialized nations of the Third World. Development is always at the center of Southern tier goals, and trade has now been explicitly linked to development. Indeed, there are provisions in WTO Agreements regarding special and differential treatment, and economic development. Moreover, WTO agreements now contain special provisions for least developed countries, many of which are found on the African continent. Notwithstanding these dispensations, the nations of Africa and other small, poor, unindustrialized nations that are on the periphery of the international trade system remain in rather wretched economic circumstances, and they appear set to remain there indefinitely. This essay speaks to the location of these nations within this paradigm and to their prospects for achieving their goals within the contemporary system. It begins with a brief and very general outline of how the trade regime has responded to the needs of Southern tier countries, and then explores how the WTO as an institution bears upon these nations, including an appraisal of how they have fared within an organization that professes to be more democratic. It then turns to development, which is the perpetual benchmark for impoverished nations in the international system and the reason they have endeavored to become part of the international trade regime. This essay then considers the intersection of the neoliberal development paradigm and a WTO ideology that claims it can raise all boats, including the vessel that will finally realize development. The premises underlying both of these theories will be explored, as well as whether these undertakings may ultimately prove impossible to attain. Even if there is commitment and enthusiasm on all sides, it is likely that any good faith emanating from the industrializing world will fade when their domestic constituencies begin pressing for protection.","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131508716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Bitter Tears of Jesse Owens","authors":"Anthony Paul Farley","doi":"10.15779/Z38QQ22","DOIUrl":"https://doi.org/10.15779/Z38QQ22","url":null,"abstract":"","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"96 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132833053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trends in Black and Latino Segregation in the Post-Fair Housing Era: Implications for Housing Policy","authors":"A. Santiago","doi":"10.15779/Z38RM1V","DOIUrl":"https://doi.org/10.15779/Z38RM1V","url":null,"abstract":"Despite the enactment of fair housing legislation during the 1960s, decades of restrictive access to communities outside of traditional minority neighborhoods have reinforced highly segregated residential patterns within U.S. metropolitan areas.' Although levels of Black/Anglo segregation have declined markedly since 1968, Blacks still are highly segregated from nonLatino Whites (Anglos),2 regardless of their socioeconomic status.3 Moreover, Latino segregation from Anglos has increased in a number of metropolitan areas during the past 20 years.4 Further, the level of interminority (i.e., Black and Latino) segregation has remained moderate to high.5 Rather than disappearing, segregated residential areas have become permanent fixtures in urban areas. As Moore and Mittelbach6 argued on the eve of the Fair Housing era, the urban ghetto was a device by which certain residents (most notably, Blacks, Mexicans, Puerto Ricans, and American Indians) became trapped in subordinate positions within society. Housing segregation became a convenient way of ensuring the continuity of the status quo. A resurgence of interest in both the effects of sustained segregation and the causes of the increased impoverishment of minorities in America's central cities has propelled scholars to reexamine the importance of place as a","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132897887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Harm's Way - A Dismal State of Justice: The Legal Odyssey of Cesar Fierro","authors":"A. Otero","doi":"10.15779/Z38WM17","DOIUrl":"https://doi.org/10.15779/Z38WM17","url":null,"abstract":"","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134267575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism and Undocumented Immigration","authors":"Berkeley La Raza Law Journal","doi":"10.15779/Z38M645","DOIUrl":"https://doi.org/10.15779/Z38M645","url":null,"abstract":"Federalism can be an important analytical tool available to courts in upholding the individual rights of undocumented aliens. The complexity of the socio-economic and political context of immigration has made Congressional attempts to regulate the field difflicult. In the absence of a clear legislative mandate, the courts have played an active role in reviewing state laws and policies. (Judicial concern for federalism questions has often been seen as mutually exclusive with equal protection values when applied to laws regarding the undocumented) Recent decisions have /ocused on either pre-emption or equal protection criteriafor reviewing state legislation, but not both. The modelfor judicial review proposed in this paper permits courts to balance state autonomy values with anti-discrimination protections in a step-by-step procedure for analyzing state treatment of the undocumented Through the process, the rights of undocumented aliens will be safeguarded to the fullest extent possible. To what extent should courts take federalism concerns into account when reviewing state legislation and policies regarding undocumented aliens.' The recent U.S. Supreme Court decision of Plyler v. Doe applied equal protection analysis to strike down a state law discriminating against undocumented alien children, but did not resolve the pre-emption issues raised in the lower courts and in previous cases.2 In skirting the issue of federalism, the Plyler court followed a line of analysis articulated by Professor Jesse Choper as \"the federalism proposal.\"3 This proposal calls for judicial restraint in questions regarding the ultimate power of the federal government vis-a-vis the states, and allows for intervention only to protect individual rights.4 Similarly, recent legal scholarship on undocumented workers puts forth models of judicial review that either neglect federalism entirely or fail to directly address it.5 This essay will show that federalism questions are relevant","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134446737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tapping into California's Central Valley's Hidden Wealth: Its Rich Cultural Capital","authors":"I. Fujimoto, G. Sandoval","doi":"10.15779/Z38BG5V","DOIUrl":"https://doi.org/10.15779/Z38BG5V","url":null,"abstract":"An untapped and powerful resource exists in the Central Valley of California: the social capital and cultural richness of its people. The Central Valley is one of the most ethnically diverse regions in the United States, yet many of its people remain hidden and relatively untapped as civic participants. Harnessing the hidden energy of the Valley's rich diversity would allow for the development and utilization of the cultural capital emerging from ethnic communities throughout the Central Valley. This cultural capital and knowledge, turned to the socioeconomic advantage of the Valley's diverse communities, can be harnessed in helping increase the political' and economic capital 2 of these marginalized ethnic groups and benefit the entire Central Valley. Generally, as immigrant communities get established, they begin addressing issues that are important to creating better lives for the members of their communities. This has been the migration history of groups adapting to their new host settlement in the United States. These adaptations might include creating equal access to resources, gaining a fuller understanding of their new host society, increasing opportunities for quality education and creating working conditions paying a living wage. This paper examines the rich ethnic diversity of the Central Valley, its ever strengthening cultural and economic capital, and the Valley's potential to harness its cultural and economic capital to create political mobilization within the region. Such political mobilization of the region's communities would allow the communities themselves to work towards resolving their social and economic concerns, and would bring much needed national attention to the region. What follows is an overview of the Valley's ethnic diversity, patterns of immigrant settlement, the ethnic contribution to the Valley's (and California's) agriculture, various barriers to settlement and different strategies that ethnic groups have developed to deal with these barriers. Finally, the paper concludes with a discussion of possibilities for political empowerment (increasing political capital) by tapping into the rich vein of cultural capital which currently exists in Valley communities. The initial steps","PeriodicalId":408518,"journal":{"name":"Berkeley La Raza Law Journal","volume":"92 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133847107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}