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Hastings Constitutional Law Quarterly

Authors

Derek Warden

Abstract

The Louisiana Constitution contains three Equal Protection Clauses. Article I, section 3 prohibits discriminatory laws; but, as an original matter, should prohibit both discriminatory laws and government conduct. Article I, section 12 prohibits discrimination by individuals (government or private) in regard to access to public places. Finally, article I, section 2, the Due Process Clause, also contains an Equal Protection component. Each clause prohibits discrimination on the basis of “physical condition,” which contains a general “disability” component. Based upon statements from the Louisiana Constitutional Convention and other modalities of constitutional argument, this article concludes that these clauses—individually and in conjunction— contain prohibitions on the following forms of disability discrimination: disparate treatment, failure to make reasonable accommodations or modifications, disparate impact, and failure to integrate or “unjustified institutionalization.” Realizing such components of the State Constitution could have significant and broad impacts—ranging from issues relating to accessible parking tags to the death penalty.

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