The Page to Practice: An Introduction

Liz Kukura & Katy Mastman

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Gay-Straight Alliances and Sanctioning Pretextual Discrimination Under the Equal Access Act

Jordan Blair Woods

Gay-Straight Alliance school bus (Photo credit: jglsongs)

This article addresses manipulation of the federal Equal Access Act to allow prejudice and discrimination against lesbian, gay, bisexual, transgender, and questioning (LGBTQ) students who wish to form gaystraight alliances (GSA) in public schools. By focusing on patterns of argumentation in the recent surge of GSA litigation, this article argues that the incorporation of the constitutionally stringent standard developed by the Supreme Court in Tinker v. Des Moines Independent Community School District into the Equal Access Act’s safe harbor exceptions is necessary to prevent courts from discriminating against LGBTQ students and from giving effect to the private homophobic and transphobic prejudices of community members, parents, and school administrators. Incorporating a more deferential reasonableness standard into the Equal Access Act’s safe harbor exceptions allows school administrators to invoke LGBTQ student safety disingenuously as a pretext to ban GSAs; thus, the exact discrimination that the Equal Access Act was designed to prohibit

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A Penny Saved Can Be a Penalty Earned: Nursing Homes, Medicaid Planning, the Deficit Reduction Act of 2005, and the Problem of Transferring Assets

Catherine M. Reif

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Abstract

The Deficit Reduction Act of 2005 (DRA) makes it difficult for a senior citizen to transfer financial assets and subsequently qualify for Medicaid’s long-term care benefit. It makes it so difficult, in fact, that it creates a class of sick, poor senior citizens who do not qualify for Medicaid because they inadvertently transferred assets long before they had reason to believe that they would need long-term care. Essentially, Medicaid law expects senior citizens who gave away money during the past five years to recover it and spend it on nursing home care before they qualify for Medicaid. However, senior citizens who simply spend their money—on cars, home improvements, or whatever they choose—are not expected to recover it and incur no penalty. The hardship waivers that are supposed to provide a safety net for ill senior citizens who are denied Medicaid coverage are useless because they are applied so restrictively. The result is the exclusion from Medicaid of the people it was designed to serve.

This article discusses how financial asset transfers are treated under Medicaid law, both before and after the DRA’s enactment, and analyzes whether Medicaid policy is served by the DRA’s changes. The article also proposes solutions to the problems caused by the DRA and presents a strategy for seniors to transfer some financial assets and still qualify for Medicaid. Finally, the article advocates for changes to Medicaid law, including changing the hardship waiver procedures, increasing the asset exemption amount, and rolling back the DRA. These changes would enable Medicaid law to perform the function for which it was designed—to provide a safety net for our nation’s poorest and sickest citizens.

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Using Laws Designed to Protect as a Weapon: Prosecuting Minors Under Child Pornography Laws

Amy F. Kimpel

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Abstract

Child pornography is exempt from First Amendment protection. However, in the age of “sexting,” social networking websites, and digital cameras, teens are increasingly engaging in behaviors that meet the legal definition of child pornography. Some minors have even been prosecuted and convicted for images they have taken of themselves. This article takes a critical look at the justifications for regulating child pornography created or consumed by minors and raises potential constitutional and statutory challenges to some prosecutions of minors under child pornography laws.

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