Notes

There are more than forty million people with disabilities in the United States. It has been said that the best definition of what it means to be a person with a disability in America is to be unemployed. The Americans with Disabilities Act (ADA) was enacted in 1990 to implement a federal policy of greater inclusion of people with disabilities in all facets of the nation’s life–including employment. The employment provisions of the Americans with Disabilities Act have the potential to ameliorate the staggering unemployment rate of people with disabilities by protecting them against discrimination on the basis of disability as they enter and advance in American workplaces.

In June 1994, the United States Supreme Court handed down a decision which, for all its real or imagined inventiveness, followed tradition in at least one important respect. Dolan v. City of Tigard, the eagerly awaited addition to the Rehnquist Court’s already controversial takings jurisprudence, said a mouthful about the constitutional status of the Takings Clause and the shape of the regulatory takings doctrine. Along the way, and almost matter-of-factly, the Court announced a shift in the burden of proof to the government. However, while it devoted a great deal of effort to its discussion of constitutional issues and state takings cases, the Dolan Court chose to make this burden shift without extended comment and confined its remarks to the space of a short footnote and a few lines of text. That a burden of proof shift occurred so quietly, yet coincided with considerable advancement in the substantive law, represents a familiar judicial tactic.

The American legal system views the relationship between parent and child as sacrosanct, only to be severed through a knowing, voluntary relinquishment by the parent or through a formal court proceeding known as a termination of parental rights (TPR). Termination of parental rights fundamentally affects the relationship between parent and child. For the parent, termination means the irretrievable loss of “the companionship, care, custody, and management of his or her children.”‘ For the child, termination raises the specter of total loss of the parent as well as loss of “‘the right of support… ; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a limited] period…, but forever.”‘

Once a court finds that a teacher has sexually harassed a student, it must decide whether the school should bear liability for the teacher’s harassment. While most agree that the teacher should be held liable for his actions, many courts disagree as to the liability of the institution that employs the teacher. When should a school district be held accountable for a teacher’s misconduct? Title IX of the Education Amendments of 1971 “[u]nquestionably … place[s] on [educational institutions] the duty not to discriminate on the basis of sex.” Sex-based discrimination resulting from sexually harassing conduct by a teacher may manifest itself in various forms: For example, a teacher may make sexual comments, leer, or inappropriately touch a student; he may make offensive sexual advances toward a student; he may solicit or coerce sexual acts from a student by promising to grade the student highly if the student complies or by threatening to fail the student if she does not; and he may rape a student. Although Title IX allows a student to bring a claim against a school for such abusive misconduct by a teacher, no definitive legal standard for assessing liability currently exists. In addition, the standards that are applied today by most courts are inadequate: They fail to provide schools with sufficient incentives to create effective preventive and monitoring measures against harassment, and they fail to provide students who have been sexually harassed with appropriate relief under Title IX. A superior standard is needed.

LoCal, a local electric utility company, plans to expand its service into the newly developed outskirts of Anytown. To effectuate this plan, it must build new electric transmission and distribution lines through several existing neighborhoods. Despite vigorous opposition from homeowners groups, the public utility commission approves the placement and construction of the new power lines. Within a few months, LoCal acquires the necessary property through eminent domain, and condemnation proceedings begin.

An appreciation of the importance of diverse viewpoints and of the commingling of those viewpoints in a democratic society animates the protection of public speech achieved by the public forum doctrine. This Note proposes that cable access advocates should ground a similar claim to access under the public forum doctrine as it has been interpreted in state courts. Cable television, and soon the new technologies of communication labeled the “information superhighway,” will far outstrip the shopping mall in altering the terms and domain of public discourse. The arguments that commended extension of the public forum doctrine to the mall thus resonate even louder in the context of those communications media.

In analyzing the Reno Rule, this Note goes beyond the policy-focused debate to examine the limits on the Department’s authority. It argues that, although the Reno Rule is justifiable from a policy standpoint, it is invalid as currently promulgated because it exceeds the Department’s delegated authority.

This Note examines the Manocherian court’s use of heightened scrutiny and argues that application of heightened scrutiny, though perhaps justified in Nollan and Dolan, should not be applied to general regulatory takings claims. The purpose of this Note is to use Manocherian as an example in arguing that the use of heightened scrutiny under the Takings Clause should be limited to those situations where the Supreme Court has already applied it—land-use exaction settings—and that it should not be extended to general regulatory takings claims.

This Note will demonstrate that Title VII’s antiretaliation provision must be interpreted broadly to achieve Title VII’s basic purpose—the elimination of employment discrimination. Part I discusses the rationale supporting those decisions that have argued for a narrow interpretation. Part II argues for a broad interpretation of the provision by responding to the arguments discussed in Part I and offering a normative argument that reflects the general purpose of Title VII and section 704(a)’s role in Title VII’s framework. Part III concludes with an argument for expanding retaliatory protection to include not only postemployment retaliation that is employment-related, but also postemployment retaliation that is personal in nature.

This Note argues that standards for seizures and consent searches that do not capture the different level of cognitive and emotional development of minors as compared to adults fail to adequately protect juveniles’ Fourth Amendment rights. The Note proposes a new framework for assessing the legality of consent searches and seizures of juveniles on the street. The framework builds on, first, Supreme Court cases in other areas of the law that recognize minors as “different” and, second, scholarship on juveniles’ cognitive, emotional, and social development.