Journal Article
19 May 2026
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- Journal Article19 May 2026
Classifying Equal Protection, the ADA, and Physical Disabilities: Why the Court Should Apply Heightened Scrutiny to Physical Disabilities and Reconsider its Decision in City Of Cleburne v. Cleburne Living Center
The Equal Protection Clause of the Fourteenth Amendment provides a constitutional check on state governments when a state statute or action classifies a group of individuals based on certain characteristics. Courts typically scrutinize a discriminatory state statute based on the type of class that it discriminates against, weighing the statute against the government interest and the statute’s relation to the asserted government interest. In City of Cleburne v. Cleburne Living Center, the United States Supreme Court applied rational basis review to a city ordinance that discriminated based on mental disabilities. Courts following Cleburne have used its rationale to apply a lower, rational basis standard of review to both physical and mental disabilities. This is despite the fact that the Americans with Disabilities Act (ADA) provides protections to the disabled by requiring state and local governments to implement “reasonable accommodations,” the purpose of which is to allow the disabled to participate to the same degree as those who are not disabled. Yet, despite Congress’s statutory mandate, the Equal Protection Clause only requires a rational basis review of state statutes that discriminate based on disabilities. The Court’s decision in Board of Trustees of the University of Alabama v. Garrett, decided after Congress passed the ADA, followed the rationale of Cleburne and affirmed its reasoning. In Garrett, the Court again relied on Cleburne’s denial of heightened scrutiny to the disabled. This Comment argues that the Supreme Court should overturn or limit Cleburne. This is because Cleburne is inconsistent with the policy underlying the ADA. The broad protection of disabilities afforded by the ADA conflicts with the Court’s application of rational basis review to equal protection disability claims. Additionally, the Supreme Court has opined that courts should not decide broader constitutional issues than are necessary to decide the rights of the specific parties before the Court. In Cleburne, the Court did not have to make a broad determination on what level of scrutiny to apply to the disabled because the City of Cleburne’s ordinance did not meet any level of scrutiny. Alternatively, the Court should at least limit Cleburne’s holding to just mental disabilities. In Cleburne, one of the Court’s predominant concerns with extending heightened scrutiny to the mentally disabled was the difficulty of identifying and understanding mental disabilities, being that they are large, amorphous, and often difficult to define as a class. The Garrett Court alluded to that same concern—that mental disabilities are too diverse, difficult to understand, and difficult to define for equal protection purposes. Limiting Cleburne’s holding to mental disabilities alone would alleviate this concern of definitional vagueness. Physical disabilities are easier to identify and diagnose because of their visible signs and manifestations, thus making the class easier to define for purposes of the Equal Protection Clause. Limiting Cleburne to mental disabilities would also further the Court’s principle of deciding constitutional questions as narrowly as possible. In light of the advances in technology aiding physical disabilities, and the fact that modern job requirements focus more on cognitive abilities rather than physical skills, the argument that the government has an interest in discriminating against physical disabilities based on a reduced capacity to participate in society is diminished. If the Court overturns, or at the very least limits, Cleburne, statutes that classify individuals based on physical disabilities should receive heightened scrutiny. Physical disabilities should either be recognized as a suspect class and receive strict scrutiny or at least be recognized as a quasi-suspect class and receive intermediate scrutiny. Overall, the Court must recognize the history and pattern of discrimination against the disabled and apply heightened scrutiny to Equal Protection claims by the physically disabled. Congress has spoken on the issue of treatment of the disabled by passing the ADA and has made specific legislative findings regarding widespread societal discrimination against the disabled. Although the ADA is an avenue of legal protection for the disabled, applying heightened scrutiny to statutes that discriminate against the physically disabled would provide them additional constitutional protection in instances when the ADA is inadequate to protect their rights.
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- Journal Article19 May 2026
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- Journal Article19 May 2026
The Federalist Gas Mask: Why the Fourth Circuit Should Adopt State Law as the Federal Standard for Natural Gas Act Eminent Domain Compensation
The federalist system of government relies heavily on state law to represent the will of the state’s population as closely as possible. In this Comment, the main discussion will be about how Virginia eminent domain compensation law should be integrated as federal law within Virginia’s boundaries, specifically regarding the Natural Gas Act (NGA). This question of whether state law should be adopted as federal law under the NGA has been answered in several federal circuit courts but has never been addressed by the Supreme Court. The issue at hand has a deeper effect than one might expect. The Virginia Constitution allows Virginia’s landowners to collect compensation for lost business profits as a result of an eminent domain action. Allowing lost profits would let landowners collect not only the fair market value of their property but also the money their businesses would have made but for the gas pipeline taking. Practically speaking, this would have the effect of getting landowners the money they will be losing, and it would also encourage gas companies to be more selective about the path they take when burying a pipeline. Federal precedent does not recognize the concept of lost profits. The law in its current form allows for too much uncertainty within the Fourth Circuit. Landowners come into negotiations with Virginia law in mind and gas companies come with federal law in mind. During the negotiations, both sides will meet at a number somewhere between what Virginia law would allow and what federal law would allow. The number is usually based on whether the parties think it is likely the Fourth Circuit will adopt Virginia law. To one of these parties, the uncertainty is an injustice, because either the gas company is paying too much for the land or the landowner is not getting the legitimate worth of his property. This Comment is premised on the assumption that the latter is occurring. The landowner is the “non-acting” party in a takings case. He did not ask to have his land taken, and he should not have to suffer a business loss because someone else wanted his property for profitable gain. Virginia foresaw this issue and thought it important enough to fix in its constitution, thus, federal courts should respect this move. If we seek justice through the law, then the law should defend the party who is helpless without it. - Journal Article19 May 2026
Classifying Equal Protection, the ADA, and Physical Disabilities: Why the Court Should Apply Heightened Scrutiny to Physical Disabilities and Reconsider its Decision in City Of Cleburne v. Cleburne Living Center
The Equal Protection Clause of the Fourteenth Amendment provides a constitutional check on state governments when a state statute or action classifies a group of individuals based on certain characteristics. Courts typically scrutinize a discriminatory state statute based on the type of class that it discriminates against, weighing the statute against the government interest and the statute’s relation to the asserted government interest. In City of Cleburne v. Cleburne Living Center, the United States Supreme Court applied rational basis review to a city ordinance that discriminated based on mental disabilities. Courts following Cleburne have used its rationale to apply a lower, rational basis standard of review to both physical and mental disabilities. This is despite the fact that the Americans with Disabilities Act (ADA) provides protections to the disabled by requiring state and local governments to implement “reasonable accommodations,” the purpose of which is to allow the disabled to participate to the same degree as those who are not disabled. Yet, despite Congress’s statutory mandate, the Equal Protection Clause only requires a rational basis review of state statutes that discriminate based on disabilities. The Court’s decision in Board of Trustees of the University of Alabama v. Garrett, decided after Congress passed the ADA, followed the rationale of Cleburne and affirmed its reasoning. In Garrett, the Court again relied on Cleburne’s denial of heightened scrutiny to the disabled. This Comment argues that the Supreme Court should overturn or limit Cleburne. This is because Cleburne is inconsistent with the policy underlying the ADA. The broad protection of disabilities afforded by the ADA conflicts with the Court’s application of rational basis review to equal protection disability claims. Additionally, the Supreme Court has opined that courts should not decide broader constitutional issues than are necessary to decide the rights of the specific parties before the Court. In Cleburne, the Court did not have to make a broad determination on what level of scrutiny to apply to the disabled because the City of Cleburne’s ordinance did not meet any level of scrutiny. Alternatively, the Court should at least limit Cleburne’s holding to just mental disabilities. In Cleburne, one of the Court’s predominant concerns with extending heightened scrutiny to the mentally disabled was the difficulty of identifying and understanding mental disabilities, being that they are large, amorphous, and often difficult to define as a class. The Garrett Court alluded to that same concern—that mental disabilities are too diverse, difficult to understand, and difficult to define for equal protection purposes. Limiting Cleburne’s holding to mental disabilities alone would alleviate this concern of definitional vagueness. Physical disabilities are easier to identify and diagnose because of their visible signs and manifestations, thus making the class easier to define for purposes of the Equal Protection Clause. Limiting Cleburne to mental disabilities would also further the Court’s principle of deciding constitutional questions as narrowly as possible. In light of the advances in technology aiding physical disabilities, and the fact that modern job requirements focus more on cognitive abilities rather than physical skills, the argument that the government has an interest in discriminating against physical disabilities based on a reduced capacity to participate in society is diminished. If the Court overturns, or at the very least limits, Cleburne, statutes that classify individuals based on physical disabilities should receive heightened scrutiny. Physical disabilities should either be recognized as a suspect class and receive strict scrutiny or at least be recognized as a quasi-suspect class and receive intermediate scrutiny. Overall, the Court must recognize the history and pattern of discrimination against the disabled and apply heightened scrutiny to Equal Protection claims by the physically disabled. Congress has spoken on the issue of treatment of the disabled by passing the ADA and has made specific legislative findings regarding widespread societal discrimination against the disabled. Although the ADA is an avenue of legal protection for the disabled, applying heightened scrutiny to statutes that discriminate against the physically disabled would provide them additional constitutional protection in instances when the ADA is inadequate to protect their rights. - Journal Article19 May 2026
No Bones About It: Ohio’s Food Negligence Standard Should Be the Model for the Rest of the Country
On July 25, 2024, the Ohio Supreme Court issued one of its most controversial decisions since its founding in 1802. It ruffled many feathers when it appeared to defy common sense by ruling, in Berkheimer v. REKM, L.L.C., that boneless wings may contain bones. However, hidden beneath all the public backlash for this seemingly illogical ruling, one will find an opinion that made significant strides in the field of food negligence. How does this ruling advance food negligence law, you ask? Well, the court finally provided a satisfying answer to a long-standing question in food negligence: What test should states apply in food negligence cases? Within the context of Berkheimer, this Note will explore the history of food negligence jurisprudence. More specifically, it examines the two prominent food negligence tests: the foreign-natural test and the reasonable expectations test. This overview of the two food negligence tests will lay the groundwork for explaining why modern tort law has largely abandoned the foreign-natural test in favor of the reasonable expectations test. Additionally, this Note discusses the unique history of Ohio food negligence precedent that culminated in the Berkheimer decision. Next, this Note will examine Berkheimer in its entirety. Berkheimer was a classic food negligence case where the plaintiff was injured by a bone in his boneless chicken wings. There, the court adopted the “mixed” test—which combines elements of both the foreign-natural test and reasonable expectations test—as the official food negligence test of the State of Ohio. This Note ultimately advocates for the universal adoption of the mixed test within the area of food negligence. A more nuanced approach would balance the objective nature of the foreign-natural test with the subjective nature of the reasonable expectations test, ensuring neither test is entirely ignored. By strictly applying the foreign-natural test while disregarding the reasonable expectations test, courts cloak restaurants in immunity by requiring the injury-causing substance to be foreign to the food. Likewise, by strictly applying the reasonable expectations test while disregarding the foreign-natural test, courts promote judicial inefficiency by requiring juries to resolve cases where the facts are not in dispute. Overall, the Ohio Supreme Court made the correct decision in Berkheimer. Berkheimer is a significant case because it represents a pivotal development in the evolving field of food negligence law. By adopting the mixed test, courts can transition away from a plaintiff- or defendant-friendly standard to one that treats plaintiffs and defendants equally. Instead of facing backlash, the Berkheimer decision should be praised.
Most Popular Articles
- Journal Article19 May 2026
- Journal Article19 May 2026
The Federalist Gas Mask: Why the Fourth Circuit Should Adopt State Law as the Federal Standard for Natural Gas Act Eminent Domain Compensation
The federalist system of government relies heavily on state law to represent the will of the state’s population as closely as possible. In this Comment, the main discussion will be about how Virginia eminent domain compensation law should be integrated as federal law within Virginia’s boundaries, specifically regarding the Natural Gas Act (NGA). This question of whether state law should be adopted as federal law under the NGA has been answered in several federal circuit courts but has never been addressed by the Supreme Court. The issue at hand has a deeper effect than one might expect. The Virginia Constitution allows Virginia’s landowners to collect compensation for lost business profits as a result of an eminent domain action. Allowing lost profits would let landowners collect not only the fair market value of their property but also the money their businesses would have made but for the gas pipeline taking. Practically speaking, this would have the effect of getting landowners the money they will be losing, and it would also encourage gas companies to be more selective about the path they take when burying a pipeline. Federal precedent does not recognize the concept of lost profits. The law in its current form allows for too much uncertainty within the Fourth Circuit. Landowners come into negotiations with Virginia law in mind and gas companies come with federal law in mind. During the negotiations, both sides will meet at a number somewhere between what Virginia law would allow and what federal law would allow. The number is usually based on whether the parties think it is likely the Fourth Circuit will adopt Virginia law. To one of these parties, the uncertainty is an injustice, because either the gas company is paying too much for the land or the landowner is not getting the legitimate worth of his property. This Comment is premised on the assumption that the latter is occurring. The landowner is the “non-acting” party in a takings case. He did not ask to have his land taken, and he should not have to suffer a business loss because someone else wanted his property for profitable gain. Virginia foresaw this issue and thought it important enough to fix in its constitution, thus, federal courts should respect this move. If we seek justice through the law, then the law should defend the party who is helpless without it. - Journal Article19 May 2026
Classifying Equal Protection, the ADA, and Physical Disabilities: Why the Court Should Apply Heightened Scrutiny to Physical Disabilities and Reconsider its Decision in City Of Cleburne v. Cleburne Living Center
The Equal Protection Clause of the Fourteenth Amendment provides a constitutional check on state governments when a state statute or action classifies a group of individuals based on certain characteristics. Courts typically scrutinize a discriminatory state statute based on the type of class that it discriminates against, weighing the statute against the government interest and the statute’s relation to the asserted government interest. In City of Cleburne v. Cleburne Living Center, the United States Supreme Court applied rational basis review to a city ordinance that discriminated based on mental disabilities. Courts following Cleburne have used its rationale to apply a lower, rational basis standard of review to both physical and mental disabilities. This is despite the fact that the Americans with Disabilities Act (ADA) provides protections to the disabled by requiring state and local governments to implement “reasonable accommodations,” the purpose of which is to allow the disabled to participate to the same degree as those who are not disabled. Yet, despite Congress’s statutory mandate, the Equal Protection Clause only requires a rational basis review of state statutes that discriminate based on disabilities. The Court’s decision in Board of Trustees of the University of Alabama v. Garrett, decided after Congress passed the ADA, followed the rationale of Cleburne and affirmed its reasoning. In Garrett, the Court again relied on Cleburne’s denial of heightened scrutiny to the disabled. This Comment argues that the Supreme Court should overturn or limit Cleburne. This is because Cleburne is inconsistent with the policy underlying the ADA. The broad protection of disabilities afforded by the ADA conflicts with the Court’s application of rational basis review to equal protection disability claims. Additionally, the Supreme Court has opined that courts should not decide broader constitutional issues than are necessary to decide the rights of the specific parties before the Court. In Cleburne, the Court did not have to make a broad determination on what level of scrutiny to apply to the disabled because the City of Cleburne’s ordinance did not meet any level of scrutiny. Alternatively, the Court should at least limit Cleburne’s holding to just mental disabilities. In Cleburne, one of the Court’s predominant concerns with extending heightened scrutiny to the mentally disabled was the difficulty of identifying and understanding mental disabilities, being that they are large, amorphous, and often difficult to define as a class. The Garrett Court alluded to that same concern—that mental disabilities are too diverse, difficult to understand, and difficult to define for equal protection purposes. Limiting Cleburne’s holding to mental disabilities alone would alleviate this concern of definitional vagueness. Physical disabilities are easier to identify and diagnose because of their visible signs and manifestations, thus making the class easier to define for purposes of the Equal Protection Clause. Limiting Cleburne to mental disabilities would also further the Court’s principle of deciding constitutional questions as narrowly as possible. In light of the advances in technology aiding physical disabilities, and the fact that modern job requirements focus more on cognitive abilities rather than physical skills, the argument that the government has an interest in discriminating against physical disabilities based on a reduced capacity to participate in society is diminished. If the Court overturns, or at the very least limits, Cleburne, statutes that classify individuals based on physical disabilities should receive heightened scrutiny. Physical disabilities should either be recognized as a suspect class and receive strict scrutiny or at least be recognized as a quasi-suspect class and receive intermediate scrutiny. Overall, the Court must recognize the history and pattern of discrimination against the disabled and apply heightened scrutiny to Equal Protection claims by the physically disabled. Congress has spoken on the issue of treatment of the disabled by passing the ADA and has made specific legislative findings regarding widespread societal discrimination against the disabled. Although the ADA is an avenue of legal protection for the disabled, applying heightened scrutiny to statutes that discriminate against the physically disabled would provide them additional constitutional protection in instances when the ADA is inadequate to protect their rights. - Journal Article19 May 2026
No Bones About It: Ohio’s Food Negligence Standard Should Be the Model for the Rest of the Country
On July 25, 2024, the Ohio Supreme Court issued one of its most controversial decisions since its founding in 1802. It ruffled many feathers when it appeared to defy common sense by ruling, in Berkheimer v. REKM, L.L.C., that boneless wings may contain bones. However, hidden beneath all the public backlash for this seemingly illogical ruling, one will find an opinion that made significant strides in the field of food negligence. How does this ruling advance food negligence law, you ask? Well, the court finally provided a satisfying answer to a long-standing question in food negligence: What test should states apply in food negligence cases? Within the context of Berkheimer, this Note will explore the history of food negligence jurisprudence. More specifically, it examines the two prominent food negligence tests: the foreign-natural test and the reasonable expectations test. This overview of the two food negligence tests will lay the groundwork for explaining why modern tort law has largely abandoned the foreign-natural test in favor of the reasonable expectations test. Additionally, this Note discusses the unique history of Ohio food negligence precedent that culminated in the Berkheimer decision. Next, this Note will examine Berkheimer in its entirety. Berkheimer was a classic food negligence case where the plaintiff was injured by a bone in his boneless chicken wings. There, the court adopted the “mixed” test—which combines elements of both the foreign-natural test and reasonable expectations test—as the official food negligence test of the State of Ohio. This Note ultimately advocates for the universal adoption of the mixed test within the area of food negligence. A more nuanced approach would balance the objective nature of the foreign-natural test with the subjective nature of the reasonable expectations test, ensuring neither test is entirely ignored. By strictly applying the foreign-natural test while disregarding the reasonable expectations test, courts cloak restaurants in immunity by requiring the injury-causing substance to be foreign to the food. Likewise, by strictly applying the reasonable expectations test while disregarding the foreign-natural test, courts promote judicial inefficiency by requiring juries to resolve cases where the facts are not in dispute. Overall, the Ohio Supreme Court made the correct decision in Berkheimer. Berkheimer is a significant case because it represents a pivotal development in the evolving field of food negligence law. By adopting the mixed test, courts can transition away from a plaintiff- or defendant-friendly standard to one that treats plaintiffs and defendants equally. Instead of facing backlash, the Berkheimer decision should be praised.