BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 43 2002 Number 3

[Pages 521-622]
AFFIRMATIVE ACTION IN HIGHER EDUCATION: CONFRONTING THE CONDITION AND THEORY
Jack Greenberg*

Abstract:  The author argues that when the Supreme Court next confronts the issue of affirmative action in higher education, it should examine the policy realistically—in terms of the condition of blacks and the consequences for the country—not abstractly, and uphold its constitutionality. In reaching this conclusion, the author: discusses the status of African-Americans in our society; reviews the legal and theoretical reasons for and against affirmative action in higher education for African-Americans; assesses African-Americans’ performance on standardized tests and how those tests impede blacks who apply for admission to selective schools; surveys the states that have prohibited affirmative action; and, evaluates how the elimination or modification of affirmative action plans would effect African-Americans. The author then introduces a new defense of affirmative action, which he calls a “social conditions” or “closing the gap” theory. The social conditions argument, considered in the context of current affirmative action jurisprudence, asks that courts approve affirmative action in higher education as a way of bettering the social conditions in which African-Americans live, because those conditions affect everyone in our society, without regard to their cause.

[Pages 623-696]
RATTLING THE CAGE DEFENDED
Steven M. Wise*

Abstract:  In Rattling the Cage: Toward Legal Rights for Animals, the author advocated basic legal rights—specifically common law rights—for chimpanzees, bonobos, and other nonhuman animals. In this Article, the author responds to many of the major criticisms of Rattling the Cage. The author confronts critics of his historical arguments for legal rights for nonhuman animals, tracing those arguments through ancient philosophy and nineteenth century English statutes. The author also expands upon his legal arguments for animal rights, reexamining various theories of rights and justifications for treating animals as property. Finally, borrowing from his upcoming book Drawing the Line: Science and The Case for Animal Rights, the author defends his advocacy of legal rights for nonhuman animals based on the relative autonomy nonhuman animals possess.

[Pages 697-740]
IN LIGHT OF THE EVIL PRESENTED: WHAT KIND OF PROPHYLACTIC ANTIDISCRIMINATION LEGISLATION CAN CONGRESS ENACT AFTER GARRETT?
Kimberly E. Dean

Abstract:  In recent years, the Supreme Court has repeatedly invalidated congressional legislation enacted pursuant to Section 5 of the Fourteenth Amendment. The Court has severely restricted this avenue for Congress to remedy and prevent discrimination. Soon, the Court may have the opportunity to address this issue again and resolve a circuit split concerning the Family and Medical Leave Act of 1993. In light of this opportunity, this Note examines the evolution and scope of the Section 5 power. The Note traces the history and varied interpretations of the Fourteenth Amendment, as well as Section 5 legislation and Court precedents reviewing that legislation. The Note concludes that when faced with the issue again, the Court should return to its former deference to congressional efforts to remedy and prevent discrimination pursuant to Section 5.

[Pages 741-781]
WEIGHING TEMPORAL PROXIMITY IN TITLE VII RETALIATION CLAIMS
Justin P. O'Brien

Abstract:  In recent years, employment discrimination retaliation claims have been a growing focus of federal employment law. The primary source of this protection has been  704(a) of Title VII of the Civil Rights Act of 1964. Title VII retaliation claims are litigated using a common judicial framework originally developed for discrimination claims. Courts differ, however, in their individual application of this framework and, as a result, vary significantly in their standards for litigating a Title VII retaliation claim. A significant source of this disparity has been the way in which courts treat the time that elapses between an employee’s anti-discrimination activity and an employer’s allegedly retaliatory action (“temporal proximity”). This Note evaluates the conflicting approaches to the element of temporal proximity. It concludes that despite the conflicting treatment of temporal proximity evidence by different federal jurisdictions, a single, optimal rule for such evidence can be identified.