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The Role of First Amendment in Equal Protection and Affirmative Action Analysis: the Compelling Governmental Interest
No full textThe Supreme Court’s decision in Students for Fair Admissions v. Harvard College has transformed the legal framework governing university admissions, sharply limiting race-conscious policies and compelling institutions to align their diversity objectives with the newly shaped heightened scrutiny under the Equal Protection Clause. Concurrently, the Trump administration’s broad-based attack on diversity, equity, and inclusion (DEI) programs—culminating in executive orders restricting race-conscious initiatives— has further intensified the legal and political pressure on colleges and universities striving to foster inclusive academic environments. This article contends that the First Amendment—particularly its protections of academic freedom and free speech—plays a critical and underutilized role in reinforcing Equal Protection and affirmative action analysis. Rooted in longstanding jurisprudence that recognizes the university as a distinctive sphere within the constitutional order, First Amendment principles support institutional autonomy in shaping academic communities and pursuing educational missions that include diversity as a pedagogical imperative. Drawing on case law, including Students for Fair Admissions v. U.S. Naval Academy, and recent lower courts’ opinions such as National Association of Diversity Officers in Higher Education et al. v. Donald Trump et al., 2025 WL 573764 (D. Md. Feb. 21, 2025), this article demonstrates how constitutional protections can shield universities from governmental overreach. By integrating the First Amendment with Equal Protection and Procedural Due Process analysis, this article outlines a constitutional strategy that bolsters the legal sustainability of diversity initiatives in higher education. It complements my companion article, The Role of Procedural Due Process in Equal Protection and Affirmative Action Analysis, by proposing a multifaceted theoretical framework that ensures institutional efforts toward inclusion remain both constitutionally grounded and resilien
Virtual Influencers, Real Liability: Strategies For Companies To Ensure Consumer Protection When Using Ai Influencers
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A Critical Analysis of Alternative Section 1031 Proximate-Exchange Structures
No full textTaxpayers have six wins and zero losses in cases that grant nonrecognition to exchanges that occur in proximity to tax-free business transactions (contributions to and distributions from entities) of the exchanged property. Those six cases (the proximate-exchange cases) were decided between 1983 and 1989. From those cases emerged the proximate-exchange principle: “[a] trade of Property A for Property B, both of like kind, may be preceded by the tax-free acquisition of Property A at the front end, or succeeded by a tax-free transfer of Property B at the back end.”1 Despite the explicit declaration of the proximate-exchange principle and the almost four decades since the last proximate-exchange case was decided, lawyers and other tax advisors continue to caution property owners against doing the transactions that have explicitly been sanctioned by the courts and lead them to alternative structures.
One reason advisors may caution against doing proximate exchanges is that proximate-exchange cases and their resulting transactions have been heavily scrutinized over the years. Such analyses appear to disregard the proximate-exchange principle. An equally problematic result of advising against court-sanctioned structures is the advice to engage in one of several pre-packaged alternative structures. Despite their popularity, these alternative structures appear to have escaped scrutiny over years. This Article fills that gap by recounting the overwhelming authority supporting proximate exchanges and turns a critical eye to the alternative structures. Not surprisingly, those alternative structures do not hold up under such scrutiny.
The foundation supporting proximate exchanges is the overlapping purposes for granting nonrecognition of gain provided under section 1031 and the partnership tax contribution and distribution rules. When considering structured exchanges, courts and the Internal Revenue Service deviate from traditional tax principles that elevate substance over form and apply a form-driven analysis that is a unique part of section 1031 jurisprudence. No authority applies the form-driven analysis to alternative structures. Alternative structures, which are beyond the form-driven analysis of section 1031 jurisprudence, do not stand up under judicial and other principles. This Article applies substance-over-form principles to the alternative structures and shows that such structures add complexity, transaction costs, and non-tax risks but do not reduce tax risks
