Note

Better a Catholic Than a Communist

In 1948, the Supreme Court in McCollum v. Board of Education declared a “released time” program for religious instruction in the Champaign, Illinois, public schools unconstitutional. Four years later in Zorach v. Clauson, the Court upheld an almost identical program in the New York City public schools. The Court distinguished the two programs on the grounds that the instruction in Champaign occurred in the school building, while the instruction in New York occurred off school grounds.

It is clear this factual distinction was persuasive to at least one justice, yet Justice Douglas inexplicably included in his opinion for the Court another justification for finding the New York plan constitutional. He wrote that Americans “are a religious people whose institutions presuppose a Supreme Being.”

This Note offers an explanation for Justice Douglas’s appeal to Americans as a religious people and contends that the argument was persuasive to the majority, save for Justice Burton. It argues that increasing post-war anti-Catholicism and the Court’s decision in Everson created a climate in 1948 where the country was concerned with a growing Catholic influence in the public schools. Following Everson, McCollum provided the Court with an opportunity to draw a line and establish Mr. Jefferson’s high wall, so much discussed in Everson, between the church and state sponsored education. 

Following McCollum, however, the country’s concern shifted to Communism. With this shift, the country’s perception of “released time” public education changed. Instead of viewing these programs as opportunities for Catholic influence in the public schools, the country viewed public religious education as an opportunity to oppose the spread of “Godless Communism,” and opposition to “released time” education was characterized as support for totalitarianism.
This Note posits that Justice Douglas’s appeal to the religious character of America reflected the changed historical context from McCollum to Zorach, namely, that by 1952 it was better to be a Catholic than a Communist.

Democratic Failure and Emergencies: Myth or Reality?

Academics have long debated the ability of a democratic government to respond to emergencies. This historical debate has assumed new significance as scholars attempt to respond to the challenges presented by the twenty-first century and the “War on Terror.” Commentators have reached different conclusions regarding how a government should operate during times of emergency, but each commentator’s ultimate conclusion must first answer an underlying, prior question: What exactly happens to democracy during times of emergency?

Traditional emergency-politics theorists explain democratic government during emergency with the “democratic failure theory.” But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have attacked the “democratic failure” theory, asserting that nothing relevant happens during an emergency to inhibit the ability of a democratic government to function. Certainly, they concede, minorities might “lose” during emergencies, but they do in normal times as well.

This Note, while remaining ambivalent about a broad application of the traditionalists’ democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. Without contesting that those factors were relevant in the internment decisions, this Note argues that individuals of Japanese descent were interned primarily because an anti-Japanese West-Coast coalition successfully exploited the democratic failure caused by the emergency of World War II. The coalition had long sought these exclusionary measures, but before World War II, those measures lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition finally harnessed the political capital necessary to achieve its exclusionary goal, if only temporarily.

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

The course of federal employment discrimination litigation is replete with instances of lower federal courts attempting to define and apply broad rules that, usually, though not always, have the effect of defeating plaintiffs’ claims of discrimination. The same-actor inference, first applied by the Fourth Circuit Court of Appeals 1991, aptly exemplifies this trend. The essence of the same-actor inference is that an individual who harbors discriminatory animus toward a protected class of persons would not knowingly hire a member of that class and then fire that same individual on account of his or her protected status. Since 1991, a circuit split has emerged on the question of who should evaluate the import of same-actor facts in a given case. Several circuits have followed the Fourth Circuit and employ the inference to justify summary judgment, directed verdicts, and judgments notwithstanding the verdict, all in favor of defendant-employers. Other circuits, in contrast, expressly reserve to the jury the decision regarding how to weigh same-actor facts. The Supreme Court has yet to resolve this split. This paper argues that the history of employment discrimination litigation, the Civil Rights Act of 1991, and public policy considerations require that it be juries, not courts, who determine the import of same-actor facts in a given employment discrimination case.

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