Florida Agricultural and Mechanical University
Florida Agricultural & Mechanical University College of LawNot a member yet
884 research outputs found
Sort by
Affirmative Action, a Look at South Africa and the United States: A Question of Pigmentation or Leveling the Playing Field
Get PDFAffirmative action is one of the most divisive issues in the United States today.\u27 Proponents of affirmative action argue that the United States has not come far enough in leveling the playing field. They argue that affirmative action programs are needed as much today-if not more-than when the balancing policies initially took effect. Opponents of affirmative action argue that race-based decision-making is undemocratic and discriminates against the majoritarian members in United States society. As we prepare to exit the twentieth century, we are confronted with the need to resolve the affirmative action dilemma. Do we eliminate affirmative-action programs altogether and institute purely color-blind policies? Is a middle-ground possible, or do we simply start anew? As the second millennium approaches, W.E.B. DuBois\u27s observation that the twentieth century must confront the problem of the color-line becomes even more apparent. As we come to the close of this century we must ask ourselves, in light of the continued problems brought on by race, if problems of the persisting color-line can be addressed with affirmative action policies-policies that are designed to eliminate past and present discrimination based on race, color, religion, sex, or national origin. If we ask the question today, with an honest outlook for tomorrow, our response has to be in the affirmative.\u27 A negative response is simply a lie.\u27 The answer is yes. We know that faces remain at the bottom of the well, and we recognize the color of those faces. If the answer should be in the affirmative, then why does a debate exist over the continuation of affirmative action programs? The only debate that should exist is how to make affirmative action programs work for the faces at the bottom of the well. The self-named victims of affirmative action programs are not faces at the bottom of the well. These self-named victims, the white members of the majority, are screaming for an end to openly sanctioned affirmative action programs because they believe such programs result in discrimination against the white majority. What they really mean is that there should be no more attempts at leveling the playing field for the faces at the bottom of the well. They do not mean discontinuing the good old boy affirmative action club; they know their club will continue as long as the color-line remains problematic in United States society. There has always been and will always be a need for affirmative action in United States society. There will always be informal policies where members of United States society will be hired without regard to their merit, will be admitted into schools even though they fall below the admission criteria, and who will be granted loans even though they come within the no loan risk zone. Formal affirmative action policies simply tell members of the majority that they have to hire, admit, and loan to minorities. What discrimination claim do the self-named victims make? The victims want color-based affirmative action programs to become nonexistent because affirmative action programs: (a) will never overcome the color problem in the United States; or (b) they, the victims, do not need them; or (c) the faces at the bottom of the well are no longer in need of them; or (d) the programs disadvantage the self-proclaimed victims. South Africa, like the rest of the globe, is setting the stage for the twenty-first century. Black South Africans have suffered throughout this century with oppression caused by a minority of the country\u27s white inhabitants. Both South African and United States oppressive practices were, and still are, based on the race of the group oppressed, and the races of both oppressed groups share the same skin pigmentation. As South Africa charts its future democratic society with a mission to do the right thing, what route will it take for uplifting the oppressed group--a leveling of the playing field laden with affirmative action policies, like the United States, or a new and different course? This article will compare South Africa\u27s future of righting the wrongs the minority in its society carried out against members of its majority with the United States\u27 stance on remedying past discrimination. Although this article parallels the United States with South Africa, minority members did not cause the oppression in the United States as they did in South Africa. In the United States\u27 truer sense of democracy, majority members caused the oppression. This article compares these two countries because the oppressed people share some commonalties, namely their skin pigmentation, which appears to be an easy target for discriminatory purposes, and the continent of their ancestry.\u27 South Africa\u27s approach to righting the wrongs suffered by so many and caused by so few is intriguing. Why is South Africa discussing affirmative action? How is it, then, that in a democratic society members of the majority need affirmative action incentives to overcome race problems brought on by members of the minority? How could oppressed people vote to oppress themselves? Why would they? Should we suggest to black South Africans that they should simply use their majority status as the minorities did? In South Africa, the fact that a majority democratic dark-skinned group is in need of affirmative action suggests that perhaps the color of one\u27s skin is at issue-not simply any darkened skin color, but a color that designates African descent. The 1996 United States presidential election vibrantly depicts the furor of affirmative action. During an election year divisive issues tend to come to the forefront because politicians know that these issues get excellent media attention that influences potential voters. Politicians go for the jugular without regard to the pain caused, proclaiming on the nightly news and advertising programs picayune resolutions to important issues. Rather than bring forth the same old arguments of the politicians and media gurus, this article examines affirmative action through South Africa\u27s prism and suggests solid resolutions the United States can use in righting its wrongs. Part I of this article examines affirmative action in the United States and discusses majority versus minority oppression and the significance of skin pigmentation. Part II compares and contrasts South Africa\u27s approach of rewriting its constitution to include the oppressed group with the United States\u27 addition of amendments to its constitution in trying to include members of the oppressed group. Part III makes recommendations for resolving affirmative action concerns in an effort to allow all members of society to embrace the twenty-first century in a way that enhances our communities without regard to skin color
Constitutional Limitations on Anticompetitive State and Local Solid Waste Management Schemes: A New Frontier in Environmental Regulation
Get PDFCreating Complex Monsters: Joint Operating Agreements and the Logical Invalidity of Treasury Regulation 1.502-1(b)
Get PDFThis article questions the validity of Regulations section 1.502-1(b) and its resulting insistence upon virtual mergers. It argues that the regulation is invalid as having no basis in section 502, the statute under which it was codified. This article argues, instead, that the regulation is a logically incorrect amalgamation of two distinct judicial tax doctrines by which tax exemption may be or could have been gained vicariously: (1) the integral part doctrine which allows one organization to achieve tax exemption on the basis of another organization\u27s charitable activities, and (2) the now-discarded destination of income doctrine under which tax exemption could be had on the sole basis that all the earnings of a corporation, however realized, were distributed to an organization directly providing charitable goods and services. An analysis of the two doctrines shows they are oriented toward distinct aspects of the unfair competition problem and do not simply address the same problem in different ways. Although the two doctrines may be legally and theoretically sound as separate doctrines, they are legally and theoretically unsound as a single merged doctrine resulting in the requirement of virtual mergers
Tax Exemption Issues Facing Academic Health Centers in the Managed Care Environment
Get PDFA variation on an old adage states, things aren\u27t like they used to be and never were. The applicability of tax law to higher education is a subject to which the modified adage is apt. If there was ever a time when tax law was generally inapplicable to higher education, when higher education administrators and counsel could ignore the maddening and glorious detail of tax law, it is certainly not now and one would be hard pressed to prove that such a time ever existed. Indeed, many of modem tax law\u27s prohibitions and allowances were motivated by or refined as a result of college and university functions occurring more than fifty years ago. The most famous example, of course, is New York University\u27s tax free operation of a pasta manufacturing company, which will be forever associated with the enactment of the unrelated business income tax and the prohibition against feeder organizations. The integral part doctrine, which is so prominent in modem tax jurisprudence, was formulated in response to the operation of a bookstore by a public institution in Washington. Hence, at least with regard to tax jurisprudence\u27s application to colleges and universities, history proves that the good old days probably never were
Killing the Proverbial Two Birds with One Stone: Using Environmental Statutes and Nuisance to Combat the Crime of Illegal Drug Trafficking
Get PDFSweep Searches--The Rights of the Community, and the Guarantees of the Fourth and First Amendments: Moms of the Chicago Public Housing Complex, Revisit Your Civil and Constitutional Rights and Save your Babies
Get PDFAfrican-American babies are an endangered species. They have the potential to live to the ripe old age of fourteen. We are singing new songs of overcoming-overcoming the loss of our babies. However, it\u27s the same song: the lyrics are Black, and the music is, as always, White. Across the nation let us hold hands, let us gather together, let us save our babies. Will the music, the lyrics of our collective songs, save our babies? Is there a collective voice? There must be a collective voice if we are to save our babies and WE must save them if we are to survive. When we saw the tragedy involving the babies in Oklahoma City, we cried. We did not believe that someone could hurt our babies. We were sickened, we were hurt, we became enraged. Get them, find them, those inhuman creatures-they hurt and killed our babies. The cry is no different for the moms in Chicago public housing. They cry out, Save our Babies, but their voices, their lyrics are drowned in the sounds of blackness. Although the constant- save our babies -remains, the savior\u27s voice has been transformed. The moms of Chicago public housing are now crying let us save our own babies. Let us relinquish our individual constitutional rights of privacy that we fought so hard for in an effort to save our babies, our own babies. The government\u27s response (the music) to the moms, was in its usual whiteness: No, you can\u27t save your babies by waiving your neighbors\u27 constitutional rights. Constitutional rights are individual rights, not community rights, and although we built this city for you, we have no obligation to save your babies from your neighbors, because the constitution protects you from us and we ain\u27t doing nothing. Before you give up hope, moms, let\u27s revisit civil rights and constitutional rights. Let\u27s revisit with the mission to save our own babies, and let\u27s do it legal style. In this paper, I am addressing fundamental issues involving the Fourth and First Amendments to the United States Constitution. In addressing these particular competing constitutional claims I am concerned that the article is accessible to a wide variety of readers. Readers of particular interest are women within the Chicago housing complex. (This group is particularly interested due to the large number of single parent households headed by women.) However, it is also directed at lawyers who litigate sweep searches claims with public housing complexes, legislators making decisions about clean sweeps, and judges. Because the audience is so diverse I am making a conscious effort to modify my language. My purpose for targeting these particular groups is to empower my sisters and address a crucial social problem with an effort to help severely disadvantaged kids survive. In choosing voice in the introduction, I recognize that African Americans are not a monolithic group of people and my use of music may be confusing to some. Music is important to most groups, but in different ways. Music is sometimes used by the African-American community to express a wide variety of concerns, causes, and their present state of mind. For example, rap music tends to explore and report the life of urban America today. The blues arose from a need to expose the effects of, but at the same time give a way to live with, discrimination. Gospel is saving grace: how we get over and how we endure. With jazz we don\u27t have to necessarily sing about our plight; we can simply feel whatever we want to feel. Our minds give us the lyrics for jazz and we control. I use the voice of music for the discussion of the appearance that the government believes that the lives of the white community are more important than the lives of people of color. This article explores whether residents of the Chicago Housing Complex (hereinafter, the Complex), in particular a double minority group, women of color, can be empowered to resolve problems in their community. The major problem in the community is the demise of the youth in the Complex. Their demise leads to incarceration or death at an early age due to drugs, violence, and the inability to leave the Complex. The cycle is inevitable and constant. It has been suggested that residents of the Complex want to waive their Fourth Amendment privacy protections and allow police to conduct sweep searches. I propose that the sweeps should be allowed as a viable solution for the residents but only in the event that a super-majority of the residents agree to them. Further, the residents be permitted to decide when to terminate the sweep searches. I challenge readers to go beyond their understanding of the protections afforded by the United States Constitution and pose for them a consideration of the enforcement of rights guaranteed by the Constitution. In the housing projects, enjoyment of Fourth Amendment protections infringes upon the First Amendment\u27s guaranties and vice versa. The practicalities and intersections of these infringements are addressed in the paper. I strongly suggest that community empowerment is the only viable solution for the residents of the Chicago Housing Complex. Community empowerment is not a new concept. Like other instances of empowerment, the group most affected by the controversy has to decide its own solution. It should be no different with the residents of the Chicago Housing Complex. I address the sweep searches controversy from the position of the plight of the children. In fashioning a solution I examine the intersectional predicament precipitated by the privacy guaranty of the Fourth Amendment coupled with the rights of a community to safeguard its citizens. I argue that the First Amendment affords the residents, in particular the children, of the Chicago Housing Complex certain guarantees. I recommend that the courts and government balance the residents\u27 freedom from unreasonable searches with the freedom of association and decide the controversy in favor of the tilt of the scales. Alternately, I also recommend that we simply allow the community, through a super-majority, to decide the controversy as we have historically done when the victims were not African-Americans
Political and Social Construction of Families through Pedagogy in Family Law Classrooms
Get PDFMost family law materials available today fail to reflect the diversity\u27 of family arrangements in modem society. Traditionally, family law is taught as a rules-based area of law. Students learn the requirements of marriage and the grounds for and consequences of divorce. Currently, there are efforts to expand the codification of family law through such things as support guidelines, uniform acts, and legislation listing specific factors to be considered in custody and property distribution cases. Many of these efforts stem from the underlying assumption that there is a uniform methodology describing and defining doctrine appropriate for resolution of family related matters. This uniform methodology stems from the perception that there is a preferred model for family structure. Because the substance of family law is personal and emotional and because we live in a period of intense sensitivities about race, gender, and diversity, consideration of these issues is a delicate matter for both professor and student. Students as well as society have a variety of family lifestyle experiences. Our pedagogical style for family law can have a silencing, as well as normalizing effect if our focus is on the married unit as the norm. Family law courses generally launch this silencing or normalizing effect by beginning the course in one of two ways-either with a consideration of the institution of marriage or with an examination of the rules governing its dissolution.\u27 Given the changes in behavior in the past several decades, one wonders why marriage is still the universally-accepted starting point. Is it presumed that marriage continues to be the exclusive foundation of the family? If so, this article suggests it is a flawed beginning. Discussing family law from the starting point of marriage defines a family structure which may not characterize all cultures in our society and may suggest a preference for one family structure over another. Our society hinges upon dichotomies Teaching family law through marriage discussions gives the appearance that marriage is the accepted way of starting a family, thereby devaluing other units-even though marriage is prohibited in some units. The married family unit may be deemed the good and all other units, the bad. Relationships and arrangements that do not resemble nuclear families are labeled dysfunctional. This negative label is not always a result of some problem in the family, but attaches simply because the unit does not conform to the marriage nuclear norm. Former Vice President Dan Quayle and his allies believe that many of the problems we face today result from the breakdown of family values, that is, the breakdown of the traditional nuclear family structure. However, the real problem is the judgmental attitude which favors certain family units while denigrating others. When a particular unit is favored as the norm, individuals who do not fit that standard often struggle futilely to conform. Frequently, this results in utter hopelessness and a lack of self-esteem. Disengagement, lack of productivity, and antisocial behavior are frequent by-products. Such a melancholy view can lead to a lack of value in one\u27s self and in life in general. This reduction in the value of life may result in acts of violence to oneself or to others. Triggering this sense of lack of value in one\u27s self simply because of the make-up of an individual\u27s family unit is, to this author, preposterous. Some individuals fall outside of the norm because of factors beyond their control, such as death and divorce;9 others do so by choice. Clearly, we live in a pluralist society where a variety of personal lifestyle choices abounds. Therefore, the laws and legal doctrine affecting those personal choices should address the diverse nature of our society in a positive way. Family law materials should reflect diversity of family arrangements in present day society without valuing some structures over others. The personal relationships which develop when a family is formed should be celebrated and valued regardless of whether the family mirrors the traditionally accepted model. Discussing family structures only from the point of marriage may be offensive to certain ethnic groups and various individuals who prefer to organize their families in less traditional ways. The thesis of this article posits that a discussion of family, regardless of the unit\u27s form, is a more appropriate starting point for a family law class. \u27 Focusing on what constitutes a family would foster discussions of laws and legal doctrines which affect our personal choices and address the diverse nature of our society. A value-free discussion of family would include consideration of various cultural backgrounds, perspectives, and norms that are extant in our pluralistic society. Part I of this paper discusses perspectives on modem day family units. Part II discusses the selection of an effective pedagogical style for teaching family law that will include various perspectives on family. Finally, the article concludes that family law professors should select a pedagogical style and textbooks that incorporate diverse family structures without implying that marriage is the only acceptable family unit
