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Forum on Public Policy Online

Vol 2010 no 5 (Posted December 2010)

Women and Careers || Laws || Early Childhood || Arts and Sciences

Laws and the Constitution

Challenging Sexual Harassment on Campus
Nancy V. Baker, Regents Professor, Government Department, New Mexico State University


More than thirty years ago, an administrative assistant at Cornell University first challenged her university’s indifference to her boss’s sexually predatory behavior.  While she did not prevail, her case sparked a movement.  Litigation, news stories, and government guidelines defining sexual harassment followed.  And universities responded: policies and grievance procedures are now in place, students and employees are informed of their rights, and university administrators and boards of trustees are aware that they must take the issue seriously.  Yet campus sexual harassment continues.  A 2006 study published by the American Association of University Women concluded that “sexual harassment remains a persistent problem for women on campus.”  The question is why.  After outlining the general development of sexual harassment law, this paper will present one possible explanation, arguing that the academic environment itself poses distinct challenges for those who confront sexual harassment in the ivory tower.


Morality and Police Conduct: a way forward for ethical policing
Michael G Crowley and Ann-Claire Larsen


At times the police make headline news for the wrong reasons having violated a rule or procedure, overstepped their powers in investigating a crime or broken the law. Sometimes, however, police behaviour, which is dubious, improper or unethical, is accepted by the judiciary. This paper explores the disjuncture between universal moral principles found in the Western Australian Police Code of Conduct and improper police conduct that discretionary decision making allows. This paper contends that although some universal moral principles are violated with apparent impunity, moral principles serve to provide an external morality guide to police. As a way forward, Habermas’ theory of discourse ethics may assist in bridging the divide between moral principles and police practices.


The Constitutional Protection of Religious Liberty in the United States
Robert A. Sedler, Distinguished Professor of Law, Wayne State University, Detroit


Religious liberty is a favored value under the United States Constitution. The Constitution provides two-fold protection to religious liberty by means of the Establishment Clause and the Free Exercise Clause. The Establishment Clause, sometimes referred to as the separation of church and state, requires that the government maintain a course of complete official neutrality toward religion. The government cannot favor one religion over another, nor can it favor religion over non-religion. The Free Exercise Clause is a textual guarantee of peoples’ right to practice their religion and to hold and act on religious beliefs. The First Amendment’s guarantee of freedom of speech provides some additional protection to religious speech and to the right of religious adherents to spread the message of their faith.
            In this paper, I will first explain how the Establishment Clause protects religious liberty, especially that of minority religions and non-believers, against governmental action benefitting more conventional religion. I will then discuss the additional, if somewhat limited, protection of religious liberty under the Free Exercise Clause and the protection of religious speech under the First Amendment.
            The most interesting part of the paper will discuss the interaction between the Establishment Clause and the Free Exercise Clause. Specifically, it will discuss how the government can include the religious with the secular in the distribution of governmental benefits, and how the government can take action that is precisely tailored to protect he religious liberty of individuals and religious institutions.

Appearance Discrimination in America: Weighting for Justice for Women Is Not Enough
Perry Spann, Professor and Founder of The American Literary Society for Higher Education

Employment appearance discrimination is practically legal in the United States of America. Yet, the discrimination can involve unjust hiring or promotional practices based solely on physicality, including weight, skin, or height, versus skills, aptitudes, or qualifications. Women are more likely impacted than men based on the empirical acceptance of societal norms concerning gender inequality. Legislation continues to improve inequitable work conditions for women, as evidenced with the Lilly Ledbetter Fair Pay Act ratified on January 29, 2009. However, the act, like other gender and equality legislation for workforce development in America, is unlikely to impede employment appearance discrimination against women due to cultural assent and tolerance. This submission intends to increase awareness about the problem and to propose initiations for extended research. Until employment appearance discrimination against women declines in America, injustice may continue to increase.

California’s Pot Shot: Legalizing Marijuana for Fun and Profit
Arthur G. Svenson, David Boies Professor of Government, University of Redlands

The citizens of California are considering an initiative, Proposition 19, that would legalize the recreational and commercial use of marijuana.  California and thirteen other states plus the District of Columbia have legalized the medical use of marijuana.  In Gonzales v. Raich, while the Supreme Court held that blanket federal prohibitions against marijuana use of any kind are constitutional, respected judges, policymakers, and scholars have opined that state medical marijuana laws are not preempted by federal law: state laws lifting criminal sanctions against medical marijuana, to the point, authorize no behavior that federal law could preempt. 

California’s current marijuana debate, however, raises an entirely new legal question.  While proponents argue that legalizing the commercial use of marijuana would effectively address the Golden State’s precipitous and punishing revenues declines, would state law that authorizes then taxes cannabusinesses of any sort be preempted by federal law?  Should Californians adopt Proposition 19, this article argues, the doctrine of federal preemption would void the legalization of commercial, but not recreational, use of marijuana, leaving California, and any other state that promises to follow its lead, with an exacerbated drug-abuse problem coupled with no new revenues to address related social costs—not to mention “jobs, health care, schools and libraries, roads and more” that proponents of marijuana’s commercial legalization promise.



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