The May 2026 issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as two student notes. Summaries of the five pieces can be found below. The full texts are also available on the BCLR website.
Academic Freedom's Inflection Point by Jerry C. Edwards
Academic freedom faces an existential crisis. The Trump administration, building on a movement that began in the states, is seeking ideological conquest of higher education. Some universities have already surrendered. Others fight on, facing an endless barrage of assaults on their institutional autonomy. Faculty too have chosen to resist, relying on their free expression rights. One of the most potent weapons in higher education’s arsenal is the constitutional academic freedom doctrine, a First Amendment protection that safeguards faculty’s academic expression and universities’ academic judgments. But the Supreme Court’s embrace of history and tradition as a focal point of its individual rights jurisprudence draws into question this doctrine’s vitality. This Article explores where academic freedom stands in an increasingly traditionalist order. Examining three defining events in America’s free speech tradition—the Sedition Act of 1798, the suppression of antislavery speech during the antebellum period, and segregationists’ attempts to silence the Civil Rights Movement—the Article identifies four free speech principles that persisted across time. First, laws discriminating against speech based on the speaker’s opinion are unconstitutional. Second, the First Amendment vigorously protects discussion of matters of public concern. Third, the First Amendment safeguards the processes that produce knowledge and discover truth—namely, free inquiry and discussion. Fourth, the purpose of free speech is to guarantee a republican form of government, which requires the people be able to freely investigate public measures and men and communicate their findings. These enduring principles also happen to be well represented in speech doctrine, including its protection of academic freedom. Furthermore, assessing the traditional functions of education in a republic offers insights into the purpose of academic freedom. James Madison, Thomas Jefferson, and their contemporaries believed education to be integral to diffusing knowledge and instilling republican values, which protected liberty and enabled the people to carry out their duties of citizenship. Antislavery Republicans shared this belief in the close connection between education, citizenship, freedom, and republicanism—making education a major part of their Reconstruction agenda. The constitutional academic freedom doctrine is a legacy of this history, synthesizing free speech principles to the end of guaranteeing a republican education. As the Trump administration’s campaign of ideological conquest makes its way before the judiciary, courts should lean on academic freedom to promote the First Amendment’s and education’s traditional values.
The Eviction Caste System by Allison M. Freedman
The United States is facing a dire housing crisis, and most Americans agree that housing is a universal necessity. Yet under current Supreme Court jurisprudence, housing is not a fundamental right, and individuals facing housing insecurity from an eviction are generally not members of a suspect class. This is because eviction is often viewed as an individual problem and a symptom of poverty, which the Supreme Court has repeatedly affirmed is not a suspect classification. This Article disrupts the superficial narrative that eviction is an individualistic symptom of poverty, and instead views evictions from a systemic and historical perspective. It argues that this shift in viewpoint opens the door to constitutional protections for some evictees. To accomplish this, the Article introduces a novel framework—the Eviction Caste System. It builds this system in three parts. First, it out-lines the origins of the system, including discriminatory housing initiatives throughout the 1900s, which relegated certain minority populations to rentals rather than homeownership and excluded these individuals from generational wealth building. Second, it explores contemporary factors that have solidified the system, such as the rise of artificial intelligence and tenant screening companies, which sell inaccurate and incomplete data to landlords who rely on it when deciding who to rent to. This process brands tenants with a “Scarlet E,” carrying lifelong consequences that are frequently passed down to future generations. And third, it draws on definitions and teachings about caste from other arenas to propose a system comprised of three castes—the Preferred Property Caste, the Perpetual Renter Caste, and the Scarlet E Caste. It posits that those subjected to historically discriminatory housing practices and carrying the “Scarlet E” occupy the lowest rung of the caste system, having access only to poor-quality housing in under-resourced areas. With this systemic framework in place, the Article concludes by offering a path for protections for the Scarlet E Caste—through the Fourteenth Amendment and the Court’s unconstitutional animus jurisprudence as well as an amendment to the Fair Housing Act. The viewpoint shift offered by this Article thus advances protection of an exceedingly vulnerable (although not suspect) class, and recognition of a critically important (although not fundamental) right. It also brings collective power to this group of individuals, many of whom have traditionally been unable to vindicate their rights through affirmative litigation. And it moves the needle toward addressing the pressing housing crisis in the United States.
Independent Appellate Review and the First Amendment by Courtney C. Douglas
First Amendment independent appellate review, now known as the Constitutional Fact Doctrine, calls on federal appellate courts to review de novo facts that strike at the heart of speech freedom claims. Yet the doctrine’s scope is underdefined, and the Court has never explained why, exactly, speech freedom interests warrant this special protection. In search of the Constitutional Fact Doctrine’s missing normative underpinnings, this Article recovers its overlooked origin story. This Article traces the doctrine’s roots not to early speech cases, but rather to capital criminal appeals brought to the Supreme Court predominantly by Black men sentenced to death for rape and murder in Southern states. The Supreme Court recognized the egregious equal protection and due process violations these petitioners suffered only by refusing to defer to lower courts’ factual findings in those cases. The doctrine migrated to the First Amendment realm in the 1960s through racial civil rights cases. This evolution suggests that independent appellate review was not motivated by an abstract reverence for speech. Instead, it sought to address entrenched inequities and to safeguard democratic principles. To that end, this Article proposes a new, more focused framework for applying independent appellate review in the First Amendment context. Courts should apply the doctrine: (1) when it advances democratic interests weakened by structural forces or (2) when it resolves factual questions entangled with complex doctrinal standards. The Article applies this approach to the growing circuit split over the standard of review for true threats determinations and ultimately argues that independent appellate review is not warranted in that context. This Article aims to align First Amendment independent appellate review with its foundational purpose: ensuring that fundamental constitutional rights—including speech freedom—are vindicated with fairness and a pragmatic attention to power.
Imported Exploitation: Worker-Led Solutions to Address a Growing Immigrant Child Labor Crisis by Julide Ozmeral
Since the Progressive Era, the United States has vowed to eradicate the “evil” of dangerous child labor, both within the nation and abroad. Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to provide meaningful labor protections, including restrictions on child employment, particularly for those working in hazardous fields. The Act was intended to operate in tandem with complimentary state-level protections. Despite this, following a surge in migration from Central and South America and a strained United States domestic labor market in the twenty-first century, conditions have once again become ripe for child labor exploitation. Within the United States today, despite federal and state-level monitoring regimes, migrant children remain exceptionally vulnerable. To better protect these minors, this Note proposes drawing on past labor movements’ successes by embracing worker-led co-enforcement strategies. These strategies may empower workers and grassroots organizations to actively monitor, report, and address gaps federal regulators left.
One Nation, Under Whose God? The Constitutional Battle Over the Ten Commandments in Louisiana Classrooms by Chloe Heller
On June 19, 2024, the State of Louisiana passed House Bill 71 (H.B. 71), a law requiring every public-school classroom to display a copy of a Protestant version of the Ten Commandments in large, easily readable font. Immediately following the passage of the law, Louisiana residents of diverse faith backgrounds challenged H.B. 71 on First Amendment grounds in the case Roake v. Brumley. The U.S. District Court for the Middle District of Louisiana struck down the law and granted a preliminary injunction, which the U.S. Court of Appeals for the Fifth Circuit affirmed on appeal. After a rehearing of the case at the Fifth Circuit en banc, the Circuit Court vacated the District Court’s preliminary injunction on the basis that the lawsuit was brought prematurely. Recent changes in First Amendment doctrine have complicated the fate of the law, and what would have been an obvious violation of the First Amendment just a few years ago is now more difficult to discern considering recent Supreme Court precedent. The fate of H.B. 71 will not only indicate the future of religion in schools and in public life—it may signal the reemergence of Protestantism as an American institution in an increasingly religiously diverse country.