Main Content

Vol 45. No.3 Spring 2021

ARTICLES

 The New Skill on the Block: Using Social Media in the Law School Classroom to Facilitate Learning

Rosa Castello...........................................................................................................393

As more communication happens in formats online, including on social media sites, lawyers need to be comfortable and effective using this form of communication professionally. Thus, it is our obligation as professors to prepare them for this, using social media ourselves as part of the coursework we expect of students. But more than preparing students for the professional world, using social media in the classroom offers us an opportunity to facilitate learning of other content in the course. Having students participate in a social media platform enables professors to monitor student comprehension and progress, it encourages reticent students to participate, and it promotes interaction among students and learning among peers.

The Structure of Rational Basis and Reasonableness Review

R. Randall Kelso...........................................................................................................415

In Whole Woman’s Health v. Hellerstedt, Justice Thomas criticized existing Supreme Court doctrine regarding the “tiers of scrutiny,” quoting a passage from an earlier Justice Scalia dissent that the “three basic tiers – ‘rational basis,’ intermediate, and strict scrutiny – ‘are [1] no more scientific than their names suggests, and [2] a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’” 136 S. Ct. 2292, 2327 (2016). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily [3] the Court tinkers with levels of scrutiny to achieve its desired result. . .. [M]ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. . . . Meanwhile, the Court [4] selectively applies rational-basis review – under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law – with formidable toughness.” Numerous commentators have expressed similar concerns on the standards of review employed by the Court.

Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. This article is the first of four that make this point.


This article addresses Justice Thomas’ criticisms stated in points [1] and [4] above on the “scientific nature” of the standards of review and possible selective application of “rational basis review.” In responding to Justice Thomas’ point [1] criticism of the lack of the “scientific nature” of the standards of review, Part II of this article discusses the differences between (1) rational basis review, sometimes called “minimum rationality review,” used for review of standard social or economic regulation under the Equal Protection Clause and Due Process Clauses (Fifth and Fourteenth Amendment); (2) a higher level of scrutiny used by the Court under the Due Process Clauses and in many other cases, called in this article “reasonableness balancing”; and (3) the structure of “higher levels” of review, such as (a) intermediate review and (b) strict scrutiny.


Parts III and IV of this article then addresses Justice Thomas’ point [4] criticism about selective application of rational basis review. The argument in Part III is that, despite the argument of Justice Thomas and some commentators to the contrary, in cases involving standard social or economic regulation under the Equal Protection Clause the Supreme Court has been careful since 1937 to use only “minimum rationality review,” not any heightened rational review or rational review with bite. Part IV makes the same argument with respect to the Due Process Clauses. Part V of this article then describes those areas of the law where the Court does use the higher level of “reasonableness balancing” review, also called in this article “second-order reasonableness review.” This review involves cases dealing with less than substantial burdens on unenumerated fundamental rights under the Due Process Clauses, but also involves some cases under the Dormant Commerce Clause, the Contract Clause, cases dealing with excessive punitive damage awards under the Due Process Clauses, and the Takings Clause. This review also involves First Amendment non-viewpoint based regulations of speech in a nonpublic forum and Procedural Due Process analysis. Part VI of the article then addresses the fact that in some “reasonableness balancing” cases the Court has shifted the burden from the challenger to prove the government action is “unreasonable” to requiring the government to prove the action is “reasonable.” Because this shifting of the burden of proof imposes a greater challenge for the government to justify its course of action, this article calls this level of review “third-order reasonableness review,” or “heightened reasonableness balancing.” Finally, Part VII responds to Justice Thomas’ examples in Hellerstedt where he questioned whether the Court has been principled in applying the standards of review.

The ’Spartan Academy’ Shield: How Courts Protect the Leader Development Education Model at Military Colleges

Christopher M. Hartley................................................................................................................... 481

Military colleges in the United States are essential to the development of the capable leaders our armed forces require to achieve the mission and policy goals of the civilian government. But these education models often give rise to legal issues that cannot be resolved with a simple comparison to the traditional college model. This Article explores the relevant doctrines courts apply to the “Spartan Academy” educational model and reviews decisions concerning the model. While these institutions are generally provided significant legal latitude in their operations, they are not without constraints, and those constraints can vary by the characteristics of each institution. As such, the Article provides that these schools can maintain the successful training of tomorrow’s military leaders by being mindful of a few key issues wherein liability may creep.

 

NOTES

 

Following Kaepernick’s Example: A Comparison of the First Amendment Rights of High School and College Athletes and How Those Rights Apply to Kneeling During the National Anthem

Chad Leitch................................................................................................................... 523

Athletes protesting racial injustice by kneeling during the National Anthem before sporting event has become prevalent in this country. As these protests have increased, so have attempts to restrict these protests especially at the collegiate and high school level. This has raised the question of whether restriction on these protests by schools are a violation of the student-athletes’ First Amendment rights. This note begins with an overview of these protests, including how they began and examples, and then transitions into a determination of what the appropriate test is to determine whether restrictions on these protests by schools are constitutional or whether they violate student-athletes’ First Amendment rights.