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Volume 65, Issue 6
Beyond The Paris Attacks: Unveiling The War Within French Counterterror Policy

By Khaled A. Beydoun65 Am. U. L. Rev. 1273 (2016) 

The Paris Attacks of November 13, 2015, left an indelible mark on France’s culture war with Islam and are poised to permanently reform the identity of French counterterrorism policy.  Since the beginning of the Jacques Chirac Administration in 1995, the State has maintained a hardline cultural assimilation campaign as the foundation of its counterterror program.  This campaign culminated in 2004 with the “Headscarf Ban,” and six years later—under President Nicolas Sarkozy—the enactment of the “Face Concealment Ban.”

The emerging threat of “homegrown radicalization” shifted the State’s focus from an assimilationist policy to Countering Violent Extremism (CVE) Policing in 2012.  This counterterror approach, employed in the United States, the United Kingdom, and some European states, is facilitated by building inroads within Muslim communities and developing the social capital within them to enhance on-site monitoring, electronic surveillance, and symbiotic collaboration as the fulcrum of policing and preventing radicalization.  The hardline cultural assimilation approach employed by France, however, undermines advancement of these vital CVE Policing goals, ultimately curbing its effectiveness.

First, this Article analyzes the strategic tensions between the cultural assimilation counterterror philosophy, championed by Chirac and Sarkozy, and the emergent CVE Policing paradigm.  Second, it proposes that the State’s interest in advancing its counterterrorism goals requires retrenching hardline cultural assimilation policies. Dissolution of such policies, most notably the Headscarf and Face Concealment Bans, is a vital step toward implementing a sustainable and effective CVE Policing program.

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School Vouchers And Tax Benefits In Federal And State Judicial Constitutional Analysis

By Joseph O. Oluwole and Preston C. Green III65 Am. U. L. Rev. 1335 (2016)

School choice advocates contend that government aid programs, such as vouchers, tax credits, and tax deductions, increase educational opportunities for students from lower income households to attend private schools that perform better than their local public schools.  Opponents contend, however, that such aid programs threaten the viability of the public school system and compel or encourage taxpayer funding of sectarian schools, fueling concerns about unconstitutional government overreach.  Such concerns have instigated a variety of constitutional challenges against government aid programs.  This Article presents a comprehensive review of the constitutionality of government aid programs under the Establishment Clause, the Free Exercise Clause, standing, and the Equal Protection Clause.  It also examines religion-based challenges to government aid programs under state constitutional provisions such as the Blaine Amendment and the compelled support clause.  Besides challenges involving government aid and sectarian schools, government aid programs are also susceptible to challenge when secular private schools receive government funding.  For these challenges, petitioners rely on state constitutional provisions rather than the federal Constitution, which does not proscribe government aid programs benefitting secular schools.  This Article examines judicial precedents on the efficacy of challenges to government aid programs under state constitutional provisions governing educational efficiency, uniformity, state control, local control, new debt, anti-gift, no aid, and public purpose.  Finally, this Article discusses the implications of the federal and state government aid jurisprudence for tax benefit and voucher legislation.

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COMMENT: Walker V. Texas Division, Sons Of Confederate Veterans, Inc. And License Plate Speech: A Dangerous Roadblock For The First Amendment

By Morgan E. Creamer65 Am. U. L. Rev. 1461 (2016)

On June 18, 2015, the Supreme Court severely limited the protections of the First Amendment of the United States Constitution in Walker v. Texas Division, Sons of Confederate Veterans, Inc.  The Court ruled that the speech displayed on specialty license plates constituted government speech, and thus, the government may exercise viewpoint discrimination in denying any private entity’s proposed design or message.  This decision is often viewed as protecting civil rights, but it has actually limited a private individual’s right to free speech and given the right of unrestricted expression to the government.  This Comment therefore argues that the Court reached the wrong decision in Walker under the First Amendment and adversely implicated citizens’ First Amendment rights because it increased the States’ discretion in government speech.

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COMMENT: They[’ve] Got Eyes In The Sky: How The Family Educational Rights And Privacy Act Governs Body Camera Use In Public Schools

By Sarah Pierce West | 65 Am. U. L. Rev. 1533 (2016)

The Family Educational Rights and Privacy Act (FERPA) is the premier federal law that protects student privacy rights in public schools.  In the face of increasing technology, courts have struggled to determine what information qualifies as a student’s “education record” protected under FERPA.  Body cameras are being increasingly utilized throughout the country.  School districts have contemplated using body cameras within schools, and some districts could soon allow school administrators to use them in disciplinary proceedings against students.  This Comment argues that FERPA should govern the use of body camera footage within public schools, and that such footage should qualify as an education record due to its wealth of personally identifiable information and its use by school personnel.  This Comment also discusses the incompatibility of certain state open records laws with FERPA and concludes that disclosure of the body camera education records will depend on individual jurisdictional interpretations of FERPA as binding law. 

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RESPONSE: “Your Corrupt Ways Had Finally Made You Blind”: Prosecutorial Misconduct And The Use Of “Ethnic Adjustments” In Death Penalty Cases Of Defendants With Intellectual Disabilities

By Michael L. Perlin, Esq.65 Am. U. L. Rev. 1437 (2016)

In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court’s decision in Atkins v. Virginia, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making such defendants—who would otherwise have been protected by Atkins and, later, by Hall v. Florida—eligible for the death penalty.  Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes.  He relied further on epigenetics to demonstrate that environmental factors—such as childhood abuse, poverty, stress, and trauma—can cause decreases in actual IQ scores, and that “ethnic adjustments” make it more likely that such individuals, who are authentically “intellectually disabled,” will be sentenced and put to death.

I agree with Professor Sanger, but I wish to shift the focus to the role of prosecutors in perpetuating this state of affairs by endorsing and sanctioning the use of “corrupt science” in the cases in question.  I consider whether there is any meaningful distinction between what was done by the state in the cases discussed by Sanger, and what was done in the cases involving fingerprints, autopsies and laboratory reports, discussed some years ago by Professor Giannelli, and whether the use of such testimony is yet another example of “corrupt science.”  Here, I conclude that legal and moral corruption similarly permeates what some prosecutors do in the “ethnic adjustment” cases. 

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COMMENT: Is That A Kielbasa In Your Pocket? Applying A Hybrid Standard To The Federal Bank Robbery Act When Bank Robbers Wield Objects As Weapons During A Bank Robbery

By Cory A. Hutchens | 65 Am. U. L. Rev. 1497 (2016)

The Federal Bank Robbery Act, 18 U.S.C. § 2113, outlines the punishment for those who rob federally insured banks.  More specifically, the Act has an “armed bank robbery” provision that imposes harsher punishment on anyone who “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.”  This provision was the focus of a recent Seventh Circuit decision involving a bank robber who robbed two banks brandishing a long-barreled lighter as a gun.  This Comment argues that the Seventh Circuit erroneously held that the lighter was not a “dangerous weapon” under the armed bank robbery provision.  Accordingly, it argues that defendants who rob banks brandishing objects as weapons can be guilty of armed bank robbery under the Federal Bank Robbery Act.  To determine whether an “armed” defendant commits armed bank robbery, this Comment proposes a hybrid standard:  whether a reasonable person in a bank robbery victim’s position would perceive the situation as one involving an actual weapon.

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