The current debate on affirmative action is whether the Court should overrule Grutter v. Bollinger, the most recent landmark case that provided the jurisprudence supporting higher education institutions' affirmative actions when the schools have a compelling interest in attaining a racially-diverse student body that can pass the most rigorous strict scrutiny test on race-based admission process, and when their holistic reviews of applications are narrowly tailored to further the compelling governmental interest.

The Equal Protection Clause of the Fourteenth Amendment of the US Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."

Justice Powell, in his touchstone opinion in Regents of the University of California v. Bakke, characterized the interests of remedying past discrimination and racial balancing as not compelling and left only the interest of attaining a diversity student body as legitimate aim that survived strict scrutiny. He therefore struck down a medical school's admission policy that reserved 16 out of 100 seats for students of certain minority groups. The interest, in Justice Powell's view, is not a simple one with statistical ethnic diversity but embraces "a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Twenty-five years later, the Court reviewed University of Michigan Law School's admission procedure in Grutter and upheld its constitutionality on the ground that its consideration of race was lawful when the interest of diversity by aiming at enrolling a "critical mass" of minority students was a compelling state interest that could justify the use of race in university admissions. Justice O'Connor explained that critical mass must be "defined by reference to the educational benefits that diversity is designed to produce," and the Court was to give a degree of deference to a university's academic decisions within constitutionally prescribed limits." However, the idea of "critical mass" was largely overshadowed by Chief Justice Rehnquist's dissent that the term should be interpreted only as a proportion of the student body, or in other words, a disguised label of quota, that was strictly rejected by the Bakke Court, and the Court's "application of [the strict scrutiny] review is unprecedented in its deference."

In the current Fisher case, The University of Texas (UT) observed that there are "underrepresented" minorities based on a comparison between the undergraduate student body and the state's population, and there were some other racial groups that were overrepresented. For instance, Hispanic enrollment was less than two-thirds of the Hispanic percentage of Texas' population and African-American enrollment was only half of the African-American percentage of Texas' population, whereas Asian-American enrollment was more than five times the Asian-American percentage of Texas' population. In 2004, for example, Asian-Americans comprised about three percent of the population in Texas, yet accounted for 18 percent of UT's freshman class.

However, isn't true diversity found only at the individual level and created by individual differences in ability, experience, interest, opinion and other personal qualities, judged without resort to the invidious short cut of racial stereotyping? Student body diversity is an educational interest but never a representational one. A lack of proportional representation could never justify racial preferences. Diversity may help with classroom discussion, preparation for the real life diverse working environment and achieving the "one Nation" dream. It calls for students of different backgrounds, experiences, majors, socio-economic statuses and other indexes that can help the school achieve these educational benefits. However, UT is simply differentiating students by their race to bring UT's student-body demographics in line with the racial demographics of the state. Simply admitting more minority students will not benefit diversity, and the true diversity cannot be explained purely by the color of students' skin. UT's effort of characterizing minority groups as "underrepresented" and "overrepresented" is a disguised racial balancing approach in that its only purpose is to have "some specified percentage of a particular group merely because of its race or ethnic origin", an idea that was clearly rejected by Bakke. UT's use of race in admissions does not favor, and actually discriminates against other groups. It is not clear why fewer members of one group than another be needed to achieve the educational benefits of diversity.

Furthermore, even assuming that race was a decisive factor in the admission process, UT's use of race still could only have added, at most, 58 African-American and 158 Hispanic students to an in-state class of 6,322. In other words, the race-conscious policy would have only admitted 0.92 percent and 2.5 percent, respectively, of the whole student body enrolled in the in-state freshman class. The 2.7 percent difference, or 33 additional students, between 2004 and 2008 would be the only affected number by race [PDF], if race were determinative of their admission. Diversity would never be achieved by such a negligible effect produced by the race-conscious mean in the huge size of student body. This is not even close to a "narrowly tailored" mean to achieve the richly diverse student body.

Moreover, the "critical mass" test in Grutter is flawed. Justice O'Connor refused to tie the concept of "critical mass" to any fixed number. Rather, she suggested that critical mass meant a "meaningful numbers" or "meaningful representation" that will encourage underrepresented minority students to participate in the classroom and allow them to not feel isolated. But the definition itself does not provide any meaningful guide that helps school define what is the real critical line but rather create ambiguity that may lead to floods of litigation. Any percentage of minorities, either published or unpublished, is defined by the school. The criteria that are used to examine whether the goals such as "minorities not feeling isolated, adequate class interaction and students critical thinking" were achieved can by no means be proved or disproved. What's more, Grutter simply gave deference to the university and concluded that its use of race was constitutional as long as there was no specific percentage of minority enrollments under the critical mass, and the school might have an unspecified number although it is inherently similar to quota, an idea expressly rejected in Bakke.

Justice Scalia depicted the critical mass justification for its discrimination race challenges as a "sham to cover the scheme of racially proportionate admissions." How can a vague, self-contradicted and unsuccessful test provide any helpful guidance to schools? By the way, is it really a strict scrutiny? Under Grutter's jurisprudence, as long as a school imitates the University of Michigan's admission process by articulating its purpose to reach diversity to the level of "critical mass" and the school considers race in a holistic and individualized manner, it will survive the strict scrutiny test. Grutter's lenient use of strict scrutiny and unprecedented deference is never seen in the Court's history.

The US was founded on the principle that "all Men are created equal." "All Men" now mean all human beings—men, women and all ethnicities. We have seen the worst times of discrimination with "separate but equal" policies that established that ethnic minorities were inherently unequal to white Americans. To redress past evil, the Court sustained the interest of "remedying the past wrong." However, race is corrosive to human dignity and the fundamental value of individual rights under our Constitution. Our dream is to create "a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement." Affirmative action, with no doubt, violates this fundamental principle. Any further use of race will detrimentally harm innocent citizens.

Race is an immutable character trait with which people are born naturally. With internationalization, more and more people choose to marry with members of other racial or ethnic groups, and there is no way to characterize others as purely Caucasians, Asians or African-Americans. As Justice Kennedy concurred in Parents
Involved v. Seattle School District No.1, "[w]hen the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite?" In Plessy, this Court held that a 7/8 white passenger should be denied use of public facility on account of the statute that was discriminating against blacks. Recently, a driver sued NASCAR because he believed that NASCAR denied him because he did not fit the purpose of the affirmative action program because he looked like a Caucasian male.

Now, what if a half-Asian half-African American applies to UT, should she be favored or disfavored? Does a 1/16 African-American who looks white fit for the protected targets under affirmative action? What about 1/64? 1/128? Are we really distinguishing people under their color of skin, and under what ground can that be justified?

"Programs should also not unduly burden individuals who are not members of the favored racial and ethnic groups." Now the net penalty [PDF] for Asian-Americans under those race-based diversity programs was 280 SAT points relative to African Americans and 235 to Hispanic applicants. Is this penalty minimal and can it be ignored?

Due to the discriminating admission policy, many Chinese-American children have become ashamed [PDF] of their ethnic heritage after concluding that their unfair denial is a form of punishment for doing something wrong and are thus unwilling to state their race at all on college applications or self-identify with their non-Asian parents. It is absurd to punish those people under the disguise of affirmative action. Classifications based on race carry a danger of stigmatic harm, may promote notions of racial inferiority and threaten to incite racial hostility. It is not our Nation's wish to send to any racial group message that they are not part of it.

The racial diversity is also not justified in that it is too over-inclusive as it does not distinguish different racial groups. For example, Asian-Americans incorporate Chinese, Japanese, Korean, Vietnamese, Indian and others. These racial groups have very different backgrounds, languages, cultures and perspectives, and their viewpoints are highly diverse. The compelling interest of government is "true diversity," which is based on students' distinct socio-economic status of their family, languages other than English spoken at home, a single-parent household, different sexual orientations and others rather than the color of their skin.

Race-conscious admission process also might detrimentally affect certain protected minority students [PDF]. People may tend to work or study with others who share equality of status, or, put in the context in the instant case, who are admitted by the regular means rather than benefiting from other aspects rather than grades. Whites and Asians may express considerable "social distance" from African Americans and Hispanics who benefited from affirmative action because of their lower standardized test scores, and thus to every African American or Hispanic who does not benefit from affirmative action. African Americans may tend to self-segregate and some African Americans or Hispanics, such as the ones who were not admitted because of affirmative action, may undergo unfair disrespect.

What still echoes is Justice Harlan's notable dissent in Plessy: "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." Justice O'Connor's expectation that 25 years from then the end of use would come is only a pure speculation, and it is now time to act.

Fangxing Li majored in Economics at China University of Political Science and Law. He worked as a law clerk for Judge Patricia A. McCullough, and he is involved with the Pitt Law Asian Lawyer Association.

Suggested citation: Fangxing Li, Looking into Affirmative Action through Fisher v. University of Texas at Austin, JURIST - Dateline, May 17, 2013, http://jurist.org/dateline/2013/05/fangxing-li-affirmative-action.php.

Under the new legislation, ten billion pesos (USD $246 million) will be set aside to provide compensation to the victims and their families. The act creates an independent Human Rights Victims' Compensation Board, which will allocate the funds according to a point system based on the type, frequency and duration of the human rights violations committed against each victim. Although the act is a step in the right direction, it does not come close to fulfilling the Philippines' legal and moral obligations of restitution, reparation and compensation for victims of human rights abuses that exist under international law.

The Philippines is currently a party to the majority of international human rights instruments and treaties with no reservations. The International Covenant on Civil and Political Rights (ICCPR) requires state parties to ensure that every person whose rights or freedoms are violated has the right to an effective remedy determined by a competent authority. It also provides victims of unlawful arrest or detention with an "enforceable right to compensation." Similarly, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture") obligates state parties to ensure that victims of torture have an "enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible."

The Philippines was not a party to either the ICCPR or the Convention Against Torture during the Marcos administration. However, the right to a remedy by a competent authority for victims of human rights violations is enshrined in Article Eight of the Universal Declaration of Human Rights (UDHR), and is considered a norm of international customary law to which nations are legally bound. Under customary international law, governments must also take reasonable steps to investigate and record human rights abuses committed by former administrations in order to identify those responsible and provide victims with adequate compensation.

In this regard, the Philippines has been extremely lax in its obligations to provide both reparations and an effective remedy to victims of human rights abuses perpetrated by the Marcos' government. After Marcos fled his country and took refuge in Hawaii in 1986, no steps were taken by any successive governments to investigate the abuses that took place under his administration. De facto impunity for police and military forces was, and still is, the rule — effectively barring victims from seeking redress and reparation. Although the act provides compensation to the victims, it is neither fair nor adequate considering the severity of the human rights abuses the victims suffered and the decades they waited for reparation and recognition.

As the victims were denied their right to an effective remedy by a competent authority in the Philippines, they turned to the US court system as a last resort. Plaintiffs were required to sue Marcos in his individual capacity, as US foreign sovereign immunity law did not allow them to name the Philippines as a defendant. A number of civil lawsuits, including a class action involving approximately 10,000 victims, were brought against Marcos. These lawsuits sought the recognition of personal liability for the human rights abuses committed under his reign, compensation for the victims and their families and punitive damages. The cases were brought under the Alien Tort Claims Act, which gives US district courts original jurisdiction of civil actions by aliens for torts committed in violation of international law.

In 1992, a six-member jury sitting in the US District Court for the District of Hawaii found Marcos personally liable for the human rights abuses committed under his leadership. The court awarded the victims $2 billion in damages, sourced from funds that Marcos had embezzled from his country and hidden during his reign. In 1997, the victims filed a suit in the Philippines to obtain enforcement of the US judgment. Initially, the regional court dismissed the suit, stating that the victims were required to pay a filing fee of $8.4 million, based on the $2 billion in dispute.

On appeal, the Supreme Court of the Philippines took 8 years to consider the issue, and eventually delivered its opinion requiring a filing fee of only $7.20. The court offered no explanation for its delay. In 2007, the Human Rights Committee of the UN (HRC) published a communication in which it concluded that the Philippines government had violated the victim's rights under the ICCPR due to the unreasonable amount of time it had taken to consider "a matter of minor complexity." The HRC requested that the government compensate the victims, promptly resolve the case on the enforcement of the US judgment and ensure that similar violations do not occur in the future. To this day, only a small portion of the US judgment has been distributed to the victims due to continuous opposition by the Philippines government.

The passage of the act may seem like the first indication that the sun is rising over the Philippines. However, the horizon remains dim. The Philippines government has continuously violated its duties under international law by refusing to respect the rights of its citizens to an effective remedy and to fair and adequate compensation for human rights abuses committed by the state. Although compensation is on its way, the act will be of no avail to many of the victims and their families who seek to know the truth surrounding the circumstances of the abuses, to have the perpetrators of the crimes brought to justice and to be guaranteed that the rights of Philippine citizens will be respected in the future.

As it has not violated another state's rights such that it could be taken to the International Court of Justice (ICJ) — and since there are no regional human rights courts that have jurisdiction over the controversy — the international community is not left with many options to hold the Philippines responsible for its violations of international law. However, the international community can use political pressure to urge the Philippines to comply with its human rights obligations by encouraging the government to take the following actions:

The government must conduct independent investigations into all of the human rights violations that have occurred during and since the Marcos regime and publish its findings. The government must prosecute the individuals who committed the crimes and must erase all reliance on impunity from prosecution so as to stop further abuses from occurring. The government must allow the victims of the past human rights abuses to collect on the US judgment immediately. Finally, the government must adhere to President Aquino's promise that "the State will protect, with unflagging commitment, the rights of all its citizens."

Lara Wharton is the winner of the 2011 Dean's Award for Outstanding Academic Achievement in Environmental Advocacy, and was a 2012 Summer Student at Wildeboer Dellelce LLP.

Suggested citation: Lara Wharton, The Philippines and the Right to Compensation for Human Rights Abuses Under International Law: Justice Delayed is Justice Denied , JURIST - Dateline, Mar. 17, 2013, http://jurist.org/dateline/2012/03/lara-wharton-philippines-compensation.php

You were lookin' for that third three, but you forgot that Professor Green folded it on Fourth Street and now you're representing that you have it. The D.A. made his two pair, but he knows they're no good. Judge Kaplan was trying to squeeze out a diamond flush but he came up short and Mr. Eisen is futilely hoping that his queens are going to stand up. So like I said, the Dean's bet is $20.

At least that is what Judge Jack Weinstein concluded in United States v. DiCristina, expressly rejecting the notion that an organized game of poker is considered illegal gambling under federal law. The central issue in the case was a narrow one: whether an organized poker game violates the Illegal Gambling Business Act (IGBA) — a federal statute that prohibits certain gambling operations for profit. Specifically, under subsection (b)(1) of the IGBA, an "illegal gambling business" is a gambling business that violates state law (there are two additional elements discussed below). Notably, it also provides a non-exhaustive list of "gambling" activities, many of which are traditional casino and sports betting activities such as roulette, bookmaking and slot machines under a separate definition found in subsection (b)(2). Poker, of course, is not one of the activities listed.

However, many states — including New York — have either expressly included poker in their definition of gambling or have concluded that poker is a game predominated by chance and, accordingly, an illegal gambling activity. In the same manner, state courts have had various opportunities to decide whether poker is considered gambling under different state gambling laws. Federal courts, in contrast, have had less opportunity to do so. In DiCristina, however, Weinstein was presented with this opportunity and took the challenge head-on. Notwithstanding the breadth of Weinstein's opinion in DiCristina, there remain a few legal and policy questions unanswered.

As an initial matter, much of the recent commentary on DiCristina has rightly focused on the glaring conclusion that poker is a game predominated by skill. However, it is important to note that the court had to jump over a few preliminary hurdles before getting to the heart of the case. The court first had to find that the IGBA contained a prerequisite of meeting its own definition of "gambling" — regardless of whether state law definitively answered that inquiry. Further, it had to conclude that "gambling" under the IGBA only included games predominated by chance. Whether this newly defined prerequisite is legally sound raises some doubts.

Tellingly, the court in DiCristina began its analysis of the statutory text and legislative history of the IGBA by citing United States v. Turley for the proposition that "[u]nless Congress manifests an 'intent to incorporate diverse state laws into a federal statute, the meaning of [a] federal statute should not be dependent on state law." The court then reasoned that, although subsection (b)(1) unambiguously incorporates state law, subsection (b)(2), which defines "gambling," does not. Instead, the court highlighted that, just like the definition of "State" under the statute, the definition of "gambling" under subsection (b)(2) is a separate and distinct provision from elements under (b)(1). On highlighting this distinction, the court suggests that, under the IGBA and as a matter of sound interpretation, both definitions of "gambling" under subsection (b)(1) and (b)(2) must be met in order to trigger liability under the IGBA. The fundamental flaw in this reasoning is two-fold.

First, the IGBA — in its entirety — was undoubtedly meant to rely exclusively on state law in determining whether a particular gambling activity, like poker, was illegal. The court itself recognized that the overriding purpose of the IGBA was to address the rampant increase in organized crime during the 1970's, which involved various gambling activities across the US that were unreachable without the resources of the federal government. But the IGBA was not meant to supplant states from prosecuting the same crimes under state law. The court even noted that "[t]he IGBA was not designed to 'define discrete acts of gambling as independent federal offenses.'" Indeed, the US Congress chose to specifically rely on state law to provide the basis for jurisdiction by requiring that the alleged illegal gambling activity be prohibited under state law. Presumably, if Congress wanted to preempt state law as to what constituted gambling or create a distinct federal crime prohibiting particular gambling activities, it could have done so. Yet the court posits that if the IGBA was designed to "federalize all state gambling offenses it need not have included any definition of gambling." That logic, however, fails to consider that by including a list of non-exhaustive gambling activities, Congress has done nothing more than provide an example of which illegal gambling business activities concerned it. In so doing, Congress was focused on targeting particular "business operations" not individual gambling activities. Thus, including a definition of gambling does not provide any independent [PDF] significance because the IGBA entirely relies on state law.

Certainly, it would be difficult to argue that Congress had a substantial federal interest in prosecuting certain gambling activities over others — if the basis for enacting the IGBA was to focus on criminals that engaged in big scale gambling operations that posed harm to US citizens. To construe the IGBA, as the DiCristina court urges, would not further Congress' purpose in dealing with illegal gambling businesses of major proportions. Rather, it would preclude a class of gambling business activities that violate state law but are not listed in the "gambling" definition found in subsection (b)(2). Indeed, the only other court to expressly address this issue in United States v. Atiyeh supports this conclusion. In Atieyh, the US Court of Appeals for the Third Circuit concluded that a violation of state law alone was sufficient to trigger liability under the IGBA. Yet DiCristina could do nothing more than distinguish Atiyeh on the basis that it failed to resolve the ambiguities in the text and history of the IGBA. On some level, the DiCristina court equally failed to resolve the same ambiguities; it just reached a divergent conclusion.

Additionally, the IGBA was designed to do precisely what a striking amount of federal laws that have criminalized state statutes have done: use a jurisdictional hook to provide federal prosecutors with a means of achieving their own specific agenda. Under the IGBA, the jurisdictional hook is the two additional elements under (b)(1), which requires that the "illegal gambling business" (1) involve five or more persons who own or manage the business and (2) either remains in business for more than 30 days or has a gross revenue of $2,000 in any single day. While these may be characterized as separate federal elements, they are nothing more than the jurisdictional hook that provides federal prosecutor with the ability to address concerns of those that have historically been state issues. But the jurisdictional hook goes no further. Although Congress may have included examples of specific gambling businesses under subsection (b)(2), nothing in the structure of the statute, the legislative history or the law's purpose suggests that the list was meant to be part of the jurisdictional hook. From a textual and logical perspective, had Congress intended subsection (b)(2) to be a prerequisite to jurisdiction it could have included it as an element under (b)(1).

While Weinstein concluded that poker is a game predominated by skill and not chance, the DiCristina opinion carries limited precedential value on future cases prosecuted under the IGBA because most illegal gambling prosecutions are primarily [PDF] handled under state prosecutorial authority. More importantly, the court in DiCristina was only able to conclude that poker was not actionable under the IGBA because it created this new prerequisite of meeting the purported federal definition of "gambling" under subsection (b)(2). This begs the question: how far does DiCristina advance the cause that poker is truly a game predominated by skills and not chance? Even if DiCristina becomes authoritative or perhaps persuasive on the issue of whether poker is a game predominated by skill, it seems less apparent whether other federal courts will jump through the same interpretive hurdles to reach that conclusion.

In sum, even if DiCristina lends support to a normative approach of legalizing poker in the federal arena, its fails to address the IGBA's reliance on the multitude of state law statutes and state law decisions that have unequivocally deemed poker an illegal gambling activity.

Renè DuBois is an articles editor for the New York Law School Law Review and a member of the Moot Court Association.

Suggested citation: Renè DuBois, United States v. DiCristina: the Interaction of Federal and State Law, JURIST - Dateline, Mar. 15, 2013, http://jurist.org/dateline/2013/03/rene-dubois-gambling-law.php

In a forthcoming note in the Stanford Law Review, I argue that, under current Fourth Amendment doctrine, drug testing welfare recipients is indeed unconstitutional. The doctrine of unconstitutional conditions, however, requires a different analysis under which conditioning welfare on consent to such testing may very well be a constitutional condition. No court until the Eleventh Circuit panel has addressed this doctrine in this context; and, unfortunately, the Eleventh Circuit misunderstood and misapplied the doctrine. This doctrine arises when the government offers a benefit that it is "permitted but not compelled to provide" — such as direct subsidies or exemptions from regulation or taxation — conditioned on the recipient of the benefit performing or foregoing an activity which he has autonomous choice to participate in and which "a preferred constitutional right normally protects from government interference." There must be a connection, however, between the condition and the benefit; this requirement is usually described as "germaneness."

The germaneness inquiry is intuitive: is the reason the government attaches the condition a reason for which it might refuse to offer the benefit altogether? For example, in Nollan v. California Coastal Commission, California informed the owners of a beachfront property that the state would only grant their building permit on "the condition that they allow the public an easement to pass across a portion of their property," which "would make it easier for the public to get to [neighboring areas]." The question was whether this was a constitutional condition. The Court answered that if the state had desired to seize a portion of the property for the purpose of protecting the public's right to view the ocean — the same reason for which it could legitimately deny the building permit altogether — then the condition would pass constitutional muster:

[T]he Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end.

A key case in the welfare area is Lyng v. International Union, UAW in which the Court upheld a 1981 amendment to the Food Stamp Act that denied eligibility to anyone engaged in a strike and denied increased allotments if a decrease in income resulted from striking. Striking is a First Amendment right, but the Court held that the law did not have a "substantial impact on any fundamental interest" and thus did not unduly coerce individuals to forgo exercising their rights. Rather, the law "merely declines to extend additional food stamp assistance to striking individuals simply because the decision to strike inevitably leads to a decline in their income." Though the Court did not use the language of germaneness, the conclusion must be that the condition on benefits is germane: because the government could deny benefits on the ground that a recipient willfully reduces his income, it can grant the benefit on the specific condition that the recipient not take such actions, even if that means forgoing a constitutional right.

We are now in a position to understand the Eleventh Circuit's discussion of unconstitutional conditions in Lebron. The panel restated the district court's holding that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests." This proposition is not, however, the thrust of the doctrine, which permits some denying of benefits even when constitutionally protected interests are at stake. Indeed, the panel quoted a US Supreme Court case, Dolan v. City of Tigard, that should have provided better guidance:

Under the well-settled doctrine of 'unconstitutional conditions,' the government may not require a person to give up a constitutional right ... in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to [the right].

The panel cites some decisions to buttress its initial statement that the government simply may not condition the benefit on forgoing a constitutional right; but in all of the cited cases, the issue was either that the germaneness requirement was not met or that the right at issue was too significantly burdened. It is insufficient to determine the outcome of the unconstitutional conditions analysis by citing only to those cases in which the condition was, in fact, found to be unconstitutional and ignoring those in which a condition was upheld.

The concurring opinion in Lebron was more forthright in concluding that the unconstitutional conditions doctrine is muddled and unclear, and hence emphasizes that the panel's holding is no more than that the district court did not abuse its discretion by finding a likely violation of the unconstitutional conditions doctrine. The Supreme Court's holding in Perry v. Sindermann, seems to be particularly determinative for the concurring judge—and for the majority, which also quoted it—which made the blanket statement that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests[.]" Yet Perry is hardly the only case on unconstitutional conditions.

Perry can stand for nothing more than the proposition that in the context of public employment of college professors, requiring that the employee accept an infringement on his rights to free speech is an unconstitutional condition. In an article titled Unconstitutional Conditions, former Stanford Law Dean Kathleen Sullivan surveys Perry and other public employment cases, and concludes that the government may sometimes deny First Amendment rights to public employees as a condition of employment, even if it could not do so in Perry:

Other conditions on public employee speech also may be upheld because some overriding government purpose justifies them, not because they do not pressure rights. Although the Court has held that the first amendment bars the state from firing public employees for speaking out on matters of public concern, and to bar dismissal from nonpolicymaking government jobs based on political affiliation, it has upheld restrictions on speech or political association that would destroy workplace electoral neutrality, or would impair 'the efficiency of the public services the state performs through its employees,' by, for example, exacerbating labor grievances ... [S]uch conditions [in the latter decisions] should be treated as infringing speech and thus in need of strong justification, but as arguably justified by the need for an efficient or depoliticized bureaucracy.

My forthcoming Stanford Law Review note explains how these cases — when applied in the drug testing context — are better explained and certain contradictions in Fourth Amendment doctrine are resolved. For present purposes, it is sufficient to point out how the doctrine examined above would apply to drug testing welfare recipients: for what purposes may the government deny welfare benefits generally? Does conditioning the receipt of these benefits on drug testing further this purpose? It seems that there are only two coherent positions one can adopt. Either drugs do have an impact on productivity, unemployment and absenteeism, and the condition of a drug search is germane, or they do not have such impacts and are not germane. But if one adopts the latter position, one must also question why drug use is illegal at all. The entire premise of criminalizing drug use is that there is some societal harm in that use. The most common arguments for criminalization are either that drug users harm others (and themselves) or they become less productive members of society.

If the aim of public welfare is to help the poor become self-sufficient and productive members of society, then, it seems to this author, all of the stated reasons why drugs should be illegal suggest that the drug search condition might be germane and, thus, constitutional.

Suggested citation: Ilan Wurman, Unconstitutional Conditions and Drug Testing Welfare Recipients , JURIST - Dateline, Mar. 13, 2013, http://jurist.org/dateline/2013/03/ilan-wurman-drug-testing.php