2018 Undergraduate Journal of Political Science

California State Polytechnic University, Pomona

Journal of Political Science Spring 2018 Volume 3, Number 11

Letter from the Editor Dear Political Science majors, As the 2017-2018 year comes to an end, I just want to say that I am eternally grateful for my time here at Cal Poly Pomona. During my four years as a Political Science Major, I have had the privilege of being the Mock Trial President, the Editor and Chief of the California State Polytechnic University, Pomona Undergraduate Journal of Political Science, a part of the Political Science Club Eboard, and a graduate of the Kellogg Honors College. One driving force that the Political Science Department has, is the ability to inspire its students. For that I would like to give a shout out to all the professors in our department. Without our supportive professors, it is safe to say that none of us would be where we are, I know that I am very grateful for all the work that they have done for me in these past four years.

With that, I would like to give a special thanks to Dr. Chaturvedi, the journals advisor, for helping the journal be what it is today.

This journal was originally started by a student who has already graduated, Tara Kwan, and since then we have seen the journal grow. Thanks to Tara, we now have an opportunity for our students to build their resumes and feature some of their best works online. The papers published every year can also be used as examples of exemplar papers for incoming students or students working on their senior capstone projects. This journal is campus-specific and will be published in Spring for each academic year. The first and second editions of the journal are already published and can be accessed on the department website.

I am proud to have been a part of this journal, as I now present the third issue of our journal, as well as the next editor-in-chief, Samara Renteria. I have high hopes for this journal to continue to grow at Cal Poly and I have no doubt that Samara will do an amazing job handling the journal next year.

Special thanks to everyone who contributed to the journal this year, from the students who took the time to submit their papers, to the editorial board that volunteered their own time to peer review the submitted papers, to the faculty/the Political Science Department for their continued support of the journal, the journal would not be the same without any of you and for that we thank you. Lastly, graphic designing is definitely harder than it seems and for that I would like to personally thank Jane Pojowa for taking the time to come back and help make this journal look as amazing as it does.

I hope the journal continues to inspire students to put their best foot forward when writing papers for their Political Science courses. If any students are interested in submitting their paper or being part of the editorial board for the next issue, they can contact Samara by email at cpppoliticalsciencejournal@gmail.com for more information.

Lastly, I want to say congratulations to all the Political Science majors who are graduating, and for those who are not, I recommend that you take advantage of all the Political Science Department has to offer. Get involved! It is definitely worth it! I hope all of you enjoy reading or browsing through the third edition of our journal.

With Appreciation,

Kristen Khair

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Letter from the Faculty Advisor

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t Cal Poly Pomona, our motto is “learn by doing.” In the Department of Political Science, we strive to give our students every possible experience that will help them develop successful careers and create well rounded scholars.

We offer over 50 undergraduate courses in six different subfields (American Politics, Comparative Politics, International Relations, Public Law, Political theory, and Public Administration). In an effort to provide our students with the experience needed to succeed in graduate programs in law, master’s programs, doctoral programs, or the job force, our courses focus on the teacher-scholar model, encouraging our students to engage in scholarly research.

In our Undergraduate Journal of Political Science, we showcase some of the best articles written by our students, exemplifying the various areas of studies offered to students here at CPP. While the articles published in the journal tackle some of the most salient issues in the discipline, we also hope that these articles serve as examples for our continuing students on what successful academic scholarship looks like.

The Undergraduate Journal is a particularly impressive endeavor in that it is student run. As such, we should recognize the editor-in-chief, Kristen Khair. Kristen’s work getting the journal to produce this issue in a timely manner and overseeing the editorial process was a monumental task, but as the final product here suggests, she did an incredible job. Kristen is now a graduate of CPP and while we are sad to see her leave, we are excited for what is on the horizon. We should also recognize the hard work of the editorial board, composed of political science students who volunteered their time to provide peer review to ensure the strength of this journal.

Finally, I offer a special thanks to my predecessor, Dr. Mario Guerrero, who served as the faculty advisor for the journal at its inception. Without Dr. Guerrero, this journal would not have existed and I am grateful for his work in setting our students up with this opportunity. Thank you to Dr. Jill Hargis, our department chair who has supported the journal’s goals, Ms. Kim Alm, the department’s administrative coordinator, and the entire faculty of the political science department who inspire our students.

Dr. Neil S. Chaturvedi Faculty Advisor Assistant Professor Department of Political Science Cal Poly Pomona

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Incoming Editor: Samara Renteria I am excited to be a part of the CPP Political Science Journal this upcoming year. I will be in my fourth year and graduating with my B.A. in Political Science in the Spring Semester. I am looking forward to next year as I intern as a JusticeCorps member at the Pomona Court House. I will also be enjoying my club activities, seeing as I have been involved in the Political Science Club as secretary for 2 years and was recently elected to serve as Vice President this Fall. I will also be taking on the role of treasurer for the Young Democrats. I enjoy getting involved in student activities and working alongside the Political Science Department and I am glad my last year reflects this. The journal means a lot to me because it depicts the diversity that Political Science has to offer as a major and the hard work the students have done to create intriguing and well-researched papers.

-Samara Renteria

Š 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the editors and the faculty advisor of the California Polytechnic State University, Pomona Undergraduate Journal of Political Science.

The California Polytechnic State University, Pomona Undergraduate Journal of Politics is copyrighted by Cal Poly Pomona. The content of all papers is copyrighted by the respective authors. The Department of Political Science cannot and will not be held liable for the actions of the California Polytechnic State University, Pomona Undergraduate Journal of Political Science.

All assertions of fact and statements of opinion are solely those of the authors. They do not necessarily represent the views of the Department of Political Science, the Editorial Board, the Advisory Board, the Faculty Advisor, Cal Poly Pomona, or its faculty and administration.

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CONTENTS JOURNAL 8 WILDLIFE TRAFFICKING

The international illicit wildlife trafficking industry is a rapidly growing operation produced by the most recent wave of globalization. The industry has created regional and global insecurity and irreversible environmental damage. Joshua Ebiner analyzes the motive for wildlife trafficking and critiques the solutions presented by both state and non-state actors. The paper concludes by suggesting that the current solutions are insufficient and outlines several workable solutions.

21 FIGHTING CORRUPTION

Anti-trust legislation is present in most wealthy countries, however each country differs on their enforcement of anti-trust laws. Thomas Genova seeks to analyze and deconstruct the anti-monopoly laws found in the United States, China, Japan and Germany. In doing this, he conducts a qualitative analysis and determines that independent agencies that create and implement newer and stronger anti-monopoly laws, can be seen as the most important factor in determining why these laws differ from country to country.

» p.8

46 ETHNIC CONFLICT » p.46

» p.21

After a wave of ethnic conflicts spread across the world at the end of the Cold War, scholars, fearful that these ethnic conflicts were a serious threat to regional and global peace, began developing numerous theoretical explanations for the causes of such violence in hopes of preventing similar occurrences from happening in the future. Laura Yeghiazaryan analyzes the three primary theories that scholars rely on (primordialism, instrumentalism, and constructivism), to determine which theory best explains the cause of ethnic conflict. Specifically, she looks at Azerbaijan, Georgia, and Moldova.

65 BLACK PUBLIC IDENTITY

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Public identities are used to shape collective perceptions about individuals, groups, and entities. Tristen Marler strives to analyze the public identity of African-Americans among various lenses of social coalitions in America. Tristen uses a quantitative model to determine how much sympathy the American electorate feels towards blacks, if blacks still face a great amount of discrimination, etc. In the end, she found that there as negative and positive identities that can be attributed to different groups of people.

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CO N T E N T S 93 IMMIGRATION: STATES VS. FEDS

Ingrid Flores examines the impact of states and local governments over immigration-related legislation. Over time, states have created legislation to address their own needs in response to growing immigrant populations, border security, and immigrant rights. Utilizing a quantitative analysis, Ingrid finds that states with higher populations of immigrates are creating more legislation.

118 CIVIL LIBERTIES ON CAMPUS

» p. 93

Trevor Samaha examines the support for civil liberties by college students in the United States, specifically the areas of free speech, privacy, and gun ownership. By utilizing a survey based methodology, Trevor finds that students, in general, are somewhat supportive of privacy rights, somewhat supportive of free speech, and not supportive of gun ownership.

166 TITLE IX: DEAR COLLEAGUE

In April of 2011, the Office of Civil Rights (OCR) released a “Dear Colleague” letter to over 7,000 colleges that receive federal funding across the United States. This policy guidance instructed new legal obligations on the practices colleges must employ to adjudicate cases of sexual violence and sexual misconduct.

Athenamarie analyzes the impact of Dear Colleague Letter of 2011 and the impact of rescinding it. Through this, she finds that the Department of Education’s claims against the Dear Colleague Letter of 2011 holds merit.

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191 TITLE IX: MICHIGAN STATE

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Title IX is a federal law that protects students from being discriminated against on the basis of sex, in any federally funded educational program. As a result of the broad guidance, sexual misconduct policies and procedures vary substantially across the nation. Gustavo Callejas evaluates Michigan State University’s best practices in implementing Title IX policies to determine whether it is being implemented in an effective manner.

209 SUPREME COURT

The Supreme Court is the ultimate decision maker in determining what laws we follow in our everyday lives, but is the Court’s opinion affected by the parties who present cases to the Court?

Kristen Khair examines whether attorneys within the last decade have been able to affect the outcome on cases that are partisanly divided in the Supreme Court. Kristen conducts a quantitative analysis utilizing a data set that she has created and finds that attorneys do not have an effect in the Supreme Court, especially when the case is partisanly divided.

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INTERNATIONAL RELATIONS Section A

Wildlife Trafficking: How Effective are State-Centric and NonGovernmental Approaches in Promoting Conservation Efforts?

Joshua S. Ebiner * Abstract

The international illicit wildlife trafficking industry is a rapidly growing operation produced by the most recent wave of globalization. The industry is intimately linked to broader international issues including regional and global insecurity, economic and social disparities, and irreversible environmental damage. Despite an international effort to reign in the industry and to mitigate its impact, the industry continues to grow. This paper accomplishes two objectives. First, it analyzes the variables that motivate individuals, particularly in developing countries, to participate in wildlife trafficking. Next, it critiques the solutions proposed and implemented by both state and nonstates actors. The paper concludes that the existing approaches to counter the illicit wildlife trafficking industry are insufficient in isolation, evident by the industry’s continued growth and profitability. Lastly, the paper will outline several solutions to promote a more holistic approach to the complexity of the issue at hand. © 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: Trafficking; Wildlife; International Relations; poaching

1. Background The global wildlife trafficking industry has experienced an unprecedented growth since the 1990s which creates varied and complex issues for lawmakers

to attempt to address. This growth is largely attributed to the most recent wave of globalization which brought major economic, political, and technological advancements to many countries throughout the world.

Those advancements contributed to important transformations in political and economic ideologies which shifted away from closed and government-

——— * Created by Joshua Ebiner, Department of Political Science, California State Polytechnic University, Pomona. Correspondence concerning this research paper should be addressed to Joshua Ebiner, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: jsebiner@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 8–20. © 2018, Political Science Department, California State Polytechnic University, Pomona

Joshua S. Ebiner

controlled economies and towards “open economies” that prioritize the elimination or reduction of regulations and restrictions on international “trade, capital flows and movement of labour” (World Trade Organization, 2008: p.21-22). According to Naim (2005), open economies are driven by the notion: (1) that “barriers to trade or investment should be as few and as low as possible”; (2) that rules should be “transparent, coherent, and uninformedly enforced”; (3) that government intervention by way of price setting efforts and “stateowned enterprises” should be limited; and (4) that “exports and open trade” should be promoted over protectionist policies that favor local industries (p.18).

Combined, these notions produced a dramatic growth in international economic activity which “brought enormous benefits for many countries and citizens” (World Trade Organization, 2008: p.13). At the same time, those notions made it easier for illicit traders to engage in their activities with minimal government interference since the latter’s ability to “act, enforce, and spend as they please” has been severely curtailed (Naim, 2005: p.20).

Although every state experiences the challenges and consequences of illicit activities in some degree or another, fiscally constrained governments are hit the hardest. Namely, fiscally constrained governments who struggle in their efforts to raise or collect taxes to cover their expenditures are forced to make budget cuts that tend to affect “law enforcement, jails, and the judiciary” (Naim, 2005: p.20). In turn, those budget cuts limit the government’s ability to monitor illicit activities, enforce its laws, prosecute violators and deter potential violators of its laws, and, in extreme cases, compensate their civil servants. Combined, these variables make the illicit wildlife trafficking industry a relatively low-risk affair that does little to deter individuals from engaging in it.

Generating an estimated $10 to $20 billion a year, illicit wildlife trafficking has serious environmental, sociopolitical, and economic consequences that include: (1) threatening national and regional security; (2) undermining the rule of law of government institutions; (3) increasing rates of corruption; (4) depriving local communities of sustainable economic development

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opportunities; (5) causing potentially irreversible damage to wildlife species, their natural habitats and surrounding ecosystems; and (6) increasing threats to public health through the spread of disease and declining biodiversity (United States Department of State, 2017; McMurray, 2009).

Because of its illusive nature and decentralized operation, pinpointing the “exact scale of the illegal trade in protected wildlife species” is difficult (McMurray, 2009: p.16). However, illicit wildlife trade networks are complex and can involve a combination of: (1) village hunters who rely on wildlife trade “as a source of subsistence cash income or kill some wildlife to protect their people and crops from attack; (2) wildlife experts; (3) criminal entities…; (4) legitimate businesses” that serve as a front; (5) corrupt government officials; and (6) consumers (Wyler and Sheikh, 2008: p.8). Moreover, there is a general consensus that “trafficking in wildlife is increasingly [becoming] a specialized area of organized crime and a significant threat to many plant and animal species” (United Nations Office on Drugs and Crime, 2016: p.13).

Addressing the former, McMurray (2009: p.18) indicates, “there is growing evidence that [suggests] that the same criminals engaging in the trafficking of drugs, weapons, and people are also engaging in the illegal wildlife trade” (see also Naim, 2005: p.158 and Scarcelli, 2017). Those individuals are motivated by the low-risks and high profit margins associated with the illicit wildlife trafficking industry (World Wildlife Fund, 2017). The high profit margins are a result of high consumer demand for a variety of wildlife products such as decorations, “[s]ouvenirs, exotic pets, food, traditional medicines, jewelry, and clothing” (McMurray, 2009: p.16; Naim, 2005: p.164).

Addressing the latter, the World Wildlife Fund (2017), an international conservation organization that works closely with the United Nations, has asserted that the scale of the modern illicit wildlife trafficking industry is “one of the main reasons that many species are endangered”. According to Interpol statistics, it is an industry that consists of “hundreds of millions of individual plants and animals from tens of thousands of

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species” and it “generates more profits than illegal arms sales” (TRAFFIC, 2008; Anderson, 1995: p.31; see also World Wildlife Fund, 2006).

With the complexity of this issue and the urgency of an effective response, policymakers at the international and national levels have implemented a collection of legislative responses to attempt to address wildlife trafficking.

Concurrently, nongovernmental organizations (NGOs) have actively participated in the international community by providing support to both policymakers and local communities that are most affected by and critical to wildlife trafficking. This paper will examine two broad approaches for wildlife trafficking. The first approach will focus on a statecentric approach which consists of legislative action taken by the United Nations in the form of treaties and conventions as well as the Parties’ corresponding national legislation. The second approach will focus on a non-governmental approach that embodies the work of NGOs. This paper will explore question of “What are the strengths and shortcomings of each approach, and how effective are they in addressing wildlife trafficking?”

2. State-Centric Approaches In 1975, the United Nations ratified the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which marked the first comprehensive international response to a growing concern that the global wildlife trade industry was endangering numerous plant and animal species. CITES, which has been ratified by 183 Member States, regulates international trade of wildlife products through an “import- and export-control licensing system” (Wyler and Sheikh, 2008: p.1) that categories species into three Appendices: Appendix I which includes species that “cannot be traded internationally for primarily commercial purposes”; Appendix II which includes species that “can be traded internationally for commercial purposes” because they are not immediately threatened by trade but are still protected by strict regulations; and Appendix III which includes species

that are protected by the domestic legislation of a given country but still needs the “cooperation of other countries to help prevent illegal exploitation” (World Wildlife Fund, 2017; Burns, 1990: p.207-211). Through these Appendices, CITES extends international protections to over 35,000 plant and animal species in effort to ensure that the international trade of those species do “not threaten their survival” (United States Government Accountability Office, 2016: p.6; CITES, 2017). CITES is particularly beneficial for those species whose populations are in decline because the abovementioned regulatory measures put into place protections against overexploitation. Namely, the licensing system involves a series of state-issued permits that are designed to promote the legal and sustainable trade of listed species and to deter “illegal, unregulated, and unreported” trade (Mundy-Taylor & Crook, 2014: p.21).

Those countries that ratified CITES are bound to its provisions and are expected to “enact the necessary legislation to give domestic effect” to it (United Nations, 2017). This process requires a state agency to administer the licensing system (“Management Authority”) and a separate agency to provide scientific guidance on the “effects of trade on the conservation status of the species in question” (“Scientific Authority”) (Brown and Swails, 2005: p.1). In United States, for instance, the U.S. Fish and Wildlife Service, Department of Homeland Security’s Customs and Border Control, and the Department of Justice, among other agencies, are tasked with implementing and enforcing the provisions in CITES through the Endangered Species Act of 1973, the Lacey Act and Lacey Act Amendments of 1981 (Federal Register, 2014; Wyler and Sheikh, 2008: p.27, 29). Similarly, all 28 Member States in the European Union are Parties to CITES which has been implemented through the EU Wildlife Trade Regulations (Engler and Parry-Jones, 2007: p.11). In essence, CITES created a global legal framework for member states to implement and operate under in an effort to address illegal wildlife trade. Moreover, this legal framework encourages multilateral international cooperation, and “information and intelligence sharing on wildlife trade” which, prior

Joshua S. Ebiner

to CITES, was a major impediment in conservation and management efforts (World Trade Organization and CITES, 2015; CITES, n.d.).

However, CITES also is subject to four critical shortcomings that have contributed to the continued growth of the international wildlife trafficking industry since its ratification: “ongoing legal gaps, capacity and political will gaps, … continuing structural drivers”, and the changing nature of wildlife trafficking networks (Wyler and Sheikh, 2013: p.12). With respect to the first shortcoming, CITES does not contain provisions that would otherwise establish the necessary mechanisms to “monitor illegal wildlife trade”, enforce member states’ compliance with its provisions, define the conditions of illegal wildlife trading, and “prescribe criminal penalties against violators” (Wyler and Sheikh, 2008: p.31). In particular, CITES does little beyond holding the ratifying member states to developing and modifying their national legislation to accommodate its provisions.

This flexibility has created a “lack of consistency in the implementation of legal frameworks” which in turn, makes it difficult for states and international organizations to identify wildlife traffickers and their networks and to prosecute them (Wyler and Sheikh, 2013: p.12). Simultaneously, that inconsistency or lack of prioritization of certain policy issues make it easier for wildlife traffickers to operate largely uninhibited as they can set up their operations in those countries whose legal structures or enforcement mechanisms are more lax.

Second, CITES can be particularly problematic because it defers the abovementioned legal and policy responsibilities to each member state who may not have the institutional capacity or political will to implement the necessary legal framework through its law enforcement and judiciary. Specifically, those countries that are “biologically rich [but have] weak governance and poor law enforcement capacity” are especially vulnerable to organized crime syndicates, insurgency groups, and terrorist organizations whose operations, in turn, contribute to instability, violence, and corruption (Wyler and Sheikh, 2008: p.5, 18). Unless countries have institutions with sufficient “personnel, expertise,

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training, funding, and equipment”, it will be difficult for them to effectively enforce the provisions of CITES and its national legislation (Wyler and Sheikh, 2013: p.12).

On the flip side, some countries may not prioritize the enforcement of wildlife trafficking laws generally or the protections of certain species specifically and therefore, tend to be lenient towards the perpetrators of those laws.

There is also the issue of countries not enforcing wildlife trafficking laws to begin with.

Third, “structural drivers” such as poverty, the “lack of alternative livelihoods in source countries”, the lack of public awareness of the consequences of a persistent and growing demand for wildlife products as well as the “environmental pressures that contribute to wildlife population loss” allows illegal wildlife trade to flourish despite international efforts to curb it (Wyler and Sheikh, 2013: p.13).

These socioeconomic and political conditions are often neglected in formal international and national legislation which creates tension between the competing priorities of the sustainable development of natural resources and providing meaningful livelihood opportunities for local communities.

Additionally, local communities may have in place social norms that are counterproductive to international legislation that attempts to preserve certain wildlife species. For example, indigenous communities may view certain species as a threat to their livelihoods and therefore, target those species as a means to defend themselves. In Africa, for instance, lions are occasionally targeted “in retribution for attacks on [local communities’] livestock” (African People & Wildlife, 2017). Other communities may place a social, cultural, or medicinal value onto wildlife products that. In countries like China, Thailand, Singapore, and Vietnam, rhino horn has been used as “a material for carving cups and trinkets, ground up for use as …traditional medicine…or is displayed whole as a status symbol” (Environmental Investigation Agency, 2017; Scarcelli, 2017). International legislation does little by way of reducing these norms and beliefs that drive the demand for wildlife products.

Fourth, wildlife crime is an increasingly complex operation that includes a decentralized “worldwide

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network of suppliers, distributors, middlemen and traffickers” (Wilson-Wilde, 2010: p. 221). These wildlife crime networks are often associated with other trafficking operations such as drugs, guns, humans, and counterfeit goods and are made possible through the bribery of government officials, the forgery of critical documents such as “CITES documents, export/import permits”, certificates, and shipment logs, and modern technology that ensure rapid and anonymous communication and business transactions (WilsonWilde, 2010: p.221; Scarcelli, 2017). These developments come at a time when national and international legislation face critical impediments by way of effective coordination, consistency, and inadequate resources and political support. Moreover, governments generally slow to respond to policy issues because of their “rigid hierarchical fashion” as well as their “dependence on standard operating procedures” (Naim, 2005: p.182). While these characteristics ensure “stability, predictability, transparency, and homogeneity in government operations” they also limit the government’s ability to respond quickly in those situations where swift action is necessary. Consequently, numerous wildlife species that are protected under CITES still experience an alarming rate of decline which calls into question the overall effectiveness of existing practices and legislation.

3. Non-Governmental Approaches The abovementioned limitations of existing international and national legislation have, in part, stimulated the involvement of non-governmental organizations (NGOs) in the enforcement of those laws as well as highlighting other areas that should be addressed to better accomplish the intended objectives.

Some critical areas of focus include: (1) improving “wildlife law enforcement by expanding training, information sharing, and strengthening regional cooperative networks” (Wyler and Sheikh, 2008: p.32); (2) promoting public education and awareness-raising

campaigns that aim to reduce consumer demand of wildlife products and to change certain cultural and social norms that contribute to wildlife trafficking; and (3) promoting economic incentives for local communities to pursue alternative and sustainable livelihoods (European Commission, 2016; International Institute for Environment and Development, 2015). This section will examine those areas of focus in turn.

First, an important contribution of NGOs is the information that they provide to the United Nations, Member States, and the various agencies involved in the growing effort to curb wildlife trafficking. As mentioned in the previous section, CITES is limited in its monitoring and funding capabilities since its legislative design defers most of those functions to its Parties. As a consequence, CITES is subject to critical “knowledge gaps” that impedes on its ability to conduct certain assessments and studies (Nash, 2004: p.15). These gaps are often filled by NGOs who offer useful information to the Parties by way of “assessments of species populations and biology, trade trends, the efficacy of past CITES interventions and the likely conservation impact of new actions” (Nash, 2004: p.14). Moreover, NGOs have the ability to raise funds “and dedicate these resources to a very specific goal” (Naim, 2005: p.203).

For instance, the World Wildlife Fund, in partnership with Google, developed the Wildlife Crime Technology Project which utilizes new technology such as “unmanned aerial vehicles (UAVs, or drones), wildlife tracking tags, and SMART (Spatial Monitoring and Reporting Tool), a ranger patrol analysis software program” to assist park rangers in Namibia counter poachers and traffickers (World Wildlife Fund, 2017). In a similar way, an anti-poaching training guidelines manual was developed in 2016 to provide improved training and tools for park rangers in Asia, Africa, and Latin America where existing working conditions and resources proved inadequate in light of the increasing sophistication of poachers’ tactics and equipment (International Ranger Federation, 2016; World Wildlife Fund and TRAFFIC, 2016).

As Naim (2005) indicates, NGOs bring a variety of “tools and capabilities that governments usually lack”

Joshua S. Ebiner

which, in turn, assists in the effective implementation of legislation and in identifying areas for improvement (p.201-202). In particular, many of the biologically rich countries are subject to government corruption or weak governance structures which limit the national and regional institutions’ ability to effectively counter the various components of a wildlife trafficking network within its territories. Put differently, NGOs serve as a critical link between the United Nations and the local communities that are affected by and crucial to CITES. Another critical contribution of NGOs is their effort to promote public education about the negative socioeconomic and environmental consequences produced by consumer demand of wildlife products. In recent years, NGOs have worked closely with local communities to provide “environmental education” which entails “visits to protected areas by local residents ... [to] help reduce the participants’ fear of wildlife,…increase their support for the conservation of species”, and educate participants on the “impacts of overharvesting and the loss of threatened and endangered species” (Food and Agriculture Organization of the United Nation, 2016: p.4). There is some evidence which indicates that “in many cases…poaching is carried out with the cognizance, or worse, active involvement of members of local communities” (Clifton and Rastogi, 2016: p.5).

An important component to reducing the involvement of local communities in the illicit wildlife trafficking network is to provide sustainable alternative livelihoods that reduce the incentives of participation. Namely, there are a variety of factors that motivate an individual’s decision to participate in a wildlife trafficking network such as: (1) the ability to meet “subsistence needs”; (2) “the desire to improve financial well-being or social standing; (3) cultural practices and traditions”; and (4) “other noninstrumental motivations such as the desire to retaliate for direct losses due to wildlife”, a lack of awareness of the implications of overexploiting wildlife species and resources, or a genuine fear of certain wildlife species viewed as threatening (Cooney et. al., 2016: p.368; Scarcelli, 2017). As it stands, the decision to participate in illicit wildlife trafficking appears to be

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a logical choice for many members of local communities because it produces a better outcome than other alternatives. In effort to address this dilemma, NGOs have worked closely with local communities to try to develop new economic opportunities that balance the competing needs of environmental preservation and economic and social development. One approach that has been taken in this avenue is to encourage communities utilize the surrounding natural resources as a center of tourism which could spur considerable investment and economic activity in the region that will provide long-term opportunities for the local population (Scarcelli, 2017). Granted, some local communities will not be able to develop this industry since certain conditions such as “political stability, tourism infrastructure, and scenic landscapes” need to be met to make tourism a viable option (Cooney et. al., 2016: p.369).

A second potential avenue is to encourage and train local people to “participate in protecting their wildlife [as] rangers, informants, or guides” (Drury, 2017). In doing so, those participants assist NGOs and national government institutions in their efforts to protect the natural resources in the surrounding area and have a direct interest in maintaining and protecting the wildlife species from traffickers and poachers. This approach has proven to be effective in Indonesia with respect to protecting and stabilizing the Sumatran tiger population in the Kerinci Seblat National Park (Drury, 2017). In addition, granting and protecting the local community’s right to use and manage the natural resources around their homes provides an incentive to utilize those resources in a sustainable manner and to defend those resources against traffickers and poachers. Another area that NGOs can assist local communities to coexist with the surrounding wildlife is to develop their infrastructure by way of fences and other physical barriers that protects their “personal security, livestock [and] crops” (Cooney et. al., 2016: p.370). “Decreasing the costs of living with wildlife” can, in conjunction with the abovementioned options, increase the incentives to engage in conservation efforts and away from trafficking and poaching (Cooney et. al., 2016: p.370).

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On the other side of the market chain, NGOs have attempted to reduce the demand of wildlife products particularly in destination countries by raising “public awareness of the harms done by wildlife trafficking” (United States and Barack Obama, 2014). Those harms include the “irreversible depletion of valuable [environmental] assets…potential loss of biodiversity, the introduction of invasive species”, reduced long-term economic opportunities for local communities, increased food insecurity, and lasting implications to national and regional security through increased (or perpetuated) government corruption and complicity (World Wildlife Fund, 2012: p. 15-17; Food and Agriculture Organization of the United Nation, 2016: p.3). For instance, in 2013, former professional basketball player Yao Ming partnered with several NGOs including WildAid, Save the Elephants, and the African Wildlife Foundation to launch a public awareness campaign in China regarding elephant and rhino poaching in South Africa and Kenya. The campaign included a video documentary and public service announcements which aimed at increasing consumers’ awareness that the poaching occurring in Africa was largely motivated by China’s market for ivory which is reportedly the largest in the world (African Wildlife Foundation, 2013). This campaign complimented the findings of a 2012 Chinese consumer survey which found, among other things, that: half of all participants “did not think elephant poaching is common”; 33% believe that “elephants are poached for their tusks”; and 66% “are not aware that rhino horns comes from poached rhinos” (African Wildlife Foundation, 2013). In addition, there is evidence that suggests that recent “elephant poaching increases in Africa are closely correlated with increases in consumer purchasing power in China” (World Wildlife Fund, 2012: p.11). These findings seem to point to the importance of NGOs conducting public education and awareness campaigns to inform consumers of the consequences their purchasing patterns. If these campaigns are successful, it may contribute to reducing the demand for ivory which, in turn, would reduce the economic incentives to poach elephants and rhinos.

However, these efforts are not without their challenges. On the one hand, there is some evidence to suggest that public education and awareness campaigns can influence and change consumer behavior. In 2011, for instance, Yao Ming and WildAid initiated a campaign addressing Chinese consumption of shark fins which received considerable coverage through various media outlets. This campaign has been credited “with a reduction of 50-70% in consumption of shark fin in China in 2012 according to shark fin traders, media, and Hong Kong import statistics” (African Wildlife Foundation, 2013). NGOs certainly contribute to “many cases of small-scale success” but their work alone will not be enough to completely address this issue (Naim, 2005: p. 207). Namely, NGOs are subject to their own limitations that undermine their ability to create widespread change in the international community. In particular, NGOs are constrained by their finite amount of resources which is likely to be significantly less than the trafficking networks they are competing against (Naim, 2005). Moreover, NGOs are highly specialized and their mission, more often than not, will revolve around very specific objectives that confine their focus to one part of the trafficking issue. For instance, an NGO may be focused on a small geographical location or certain wildlife species. This “tunnel vision” is largely produced by the organizations’ need to raise public funding which is more attainable when it appeals to those sentiments that are strongly held by potential donors (Naim, 2005: p.207). Moreover, many of the advocates who operate these NGOs “are motivated by ideals, which differ enormously from activist to activist, group to group” (Naim, 2005: p.215). It is also the case that advocates may “have ulterior motives” such as religious, cultural, social, political, or economic interests that can conflict with the motivates of other advocates (Naim, 2005: p.217). As a consequence, NGOs are limited not only in their scope but also in their operation and their ability to coordinate with other NGOs that may share mutual interests. Certain animal species or certain geographical areas, therefore, may receive more attention and support from NGOs while others are left largely unaddressed. Similar concerns were expressed

Joshua S. Ebiner

with respect to demand reduction programs aimed at tiger poaching throughout Asia. Namely, those programs existed to some extent but were not conducted in a “systematic and comprehensive manner that would allow for the identification of drivers, factors, and key consumer groups” (Stoner, Krishnasamy, Wittmann, Delean, and Cassey, 2016: p.19). This limitation certainly hinders those NGOs’ ability to identify important consumer behaviors, patterns and beliefs which, consequently, limits their ability to carefully cater their efforts to address those components.

Moreover, there is not a dedicated effort to reduce tiger poaching as compared to the scale of conservation efforts for elephant ivory or rhino horn. These inherent limitations confine NGOs to small-scale battles but that, in and of itself, will not be enough to pose a significant challenge to illicit wildlife trafficking networks.

4. Conclusion This paper has examined two broad policy approaches that aim to address illicit wildlife trafficking: state-centric and non-governmental. The former primarily focuses on CITES, which is the first international effort through the United Nations to coordinate Member States’ conservation strategies. It is a significant contribution to the conservation of endangered and threatened wildlife species whose population decline is largely attributed to human activity and consumer behavior. Through a series of complex regulations, CITES can be an effective tool to regulate the trade of wildlife species to ensure that Member States are adopting sustainable plans for their usage of wildlife products. It can also be critical to the efforts to counter the illegal trafficking of certain wildlife species through information-sharing and multilateral cooperation. At the same time, CITES is limited in four critical ways: (1) “ongoing legal gaps, capacity and political will gaps, … continuing structural drivers”, and the changing nature of wildlife trafficking networks (Wyler and Sheikh, 2013: p.12). In addition, the current global approach places an emphasis on the supply of wildlife products

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rather than the demand in destination countries. This focus does little to reduce the demand of wildlife products and can be attributed to “driving the price up and increasing the profits made by poachers” (International Institute for Environment and Development, 2015: p.11; Scarcelli, 2017). Only recently have governments started to shift their focus from the supply side to the demand side of this phenomenon but an overhaul of policy is yet to occur.

Those limitations have largely undermined CITES and Member States’ efforts to curb wildlife trafficking since many wildlife species continue to be pushed to the brink of extinction.

The limitations from a state-centric approach seem to have contributed to the proliferation of NGOs whose efforts aim to address specific components of the wildlife trafficking networks. NGOs have proven invaluable in providing a connection between international treaties and conventions like CITES, its ratifying Parties, and the local communities that are most affected by and critical to wildlife trafficking networks.

NGOs have primarily focused on building the capacity of local communities and regional entities to better train and equipment law enforcement, promoting and developing alternative sustainable economic opportunities, and engaging in public awareness campaigns both on the supply side and demand side of the wildlife trafficking network. Although these efforts have demonstrated small-scale successes, NGOs are limited in their ability to enact lasting and widespread change.

Accordingly, existing approaches to countering illicit wildlife trafficking appear to be insufficient to effectively address the issue. Going forward, two solutions may prove fruitful in countering wildlife trafficking. First, it must be acknowledged that governments and NGOs cannot solve this problem through a fragmented and largely uncoordinated response. Both are inherently limited in their ability to tackle the issue in isolation. Accordingly, governments need to increase their coordination with each other to ensure consistency both in the development of wildlife trafficking laws as well as the enforcement of those laws.

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This will require a great deal of trust between political, legal and, intelligence agencies to ensure that there are as few blind spots in the regulation and management of wildlife products as possible (Naim, 2005). Until those inconsistencies are resolved, wildlife networks can simply adjust their operations from one location or product to another that is receiving less attention. If states can develop a secure and coordinated effort that incorporates shared intelligence and best practices, they may be in a position to produce “better, more convincing results than does starting with an ambitious global treaty from which most countries in practice defect” (Naim, 2005: p.255). NGOs are crucial in this respect because they can provide information and ground-level resources that otherwise are beyond the reach of most government institutions. Even at the NGO level, however, effective coordination and information-sharing efforts should be pursued in a more congruent fashion to ensure consistency and efficiency in their operations.

Second, there needs to be a strong political will that drives a holistic effort to counter illicit wildlife trafficking networks. This goes beyond simply enacting laws; it necessarily involves the consistent and effective enforcement of those laws. As mentioned previously, government corruption and complicity has been one of several factors that have contributed to the growth of wildlife trafficking networks. In many instances, trafficking “infiltrates governments, and it can go so far as to control the government of an entire province or even take over a weak or failed state” (Naim, 2005: p.

240). Accordingly, two objectives need to be pursued in conjunction with each other. First, governments and NGOs should focus on reducing the demand for wildlife products in destination countries. Governments can contribute to this by enacting laws to prohibit the sale of certain wildlife products if, in doing so, they can promote the protection of those species. In addition, efforts should be made by both governments and NGOs to pursue demand reduction strategies such as public awareness and education campaigns to inform consumers of the negative and irreversible damage caused by wildlife trafficking and perpetuated by specific consumer patterns. If consumer demand for

those products decreases, the prices of wildlife products will likely also decrease because the financial incentives for traffickers and poachers to engage in their illicit activities is significantly reduced if not eliminated.

Second, NGOs and governments should work together to build the capacity of local communities. This would include the development of: (1) infrastructure to protect the local communities’ resources such as livestock and crops; (2) locally-based and operated industries such as tourism that both creates economic opportunities for and investment in these areas; and (3) a formal system that recognizes and protects the local communities’ right to utilize and maintain natural resources and wildlife species surrounding their homes. These measures would give local communities an incentive to protect, maintain, and sustainably develop the natural resources and wildlife species surrounding them which, in turn, may increase their resilience to poachers and traffickers to attempt to disturb that system. Moreover, it may contribute to lasting social and political developments that improve the strength and legitimacy of regional and national governments. Namely, if it is the case that illicit wildlife trafficking threatens national and regional security, undermines the rule of law of government institutions, and increases rates of corruption and complicity, then it would logically follow that reducing the prevalence of illicit wildlife trafficking would reduce, perhaps negative, those implications.

These changes, however, are not possible unless there is political support and determination to enact them.

Politicians may be hesitant to shift the focus of wildlife trafficking from the supply side, which in many cases lies on the other side of the globe, to the demand side which rests in their backyards. It may be a difficult policy approach to propose and defend if the voter base does not support it. Politicians, whose assumed goal is to be re-elected, will likely “weigh their interest in potential reforms and innovations by the measure of political realities in their constituency” (Naim, 2005: p.257). If it is likely that politicians pursuing these reforms will not be re-elected as a consequence of public backlash, they will be likely to avoid such reforms. Thus, a change in the political beliefs and attitudes of the

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general public is also a necessary condition to ensure the development of the abovementioned policy changes.

That change may come about through “education, mobilization, [and] election campaigns” (Naim, 2005: p.257). If there is enough public support to pursue new policy approaches on illicit wildlife trafficking, politicians will respond to the general will by codifying those policy approaches into law. Until then, illicit wildlife trafficking will remain to be a considerable change that produces irreversible consequences.

5. Works Cited African People and Wildlife. (2017). How Illegal Wildlife Trafficking Could Decimate Lion Populations. Retrieved November 28, 2017 from https://africanpeoplewildlife.org/illegal-wildlifetrafficking-decimate-lion-populations/.

African Wildlife Foundation (2013). Yao Ming Says No to Ivory and Rhino Horn. Retrieved November 28, 2017 from http://www.awf.org/news/yao-mingsays-no-ivory-and-rhino-horn.

Anderson, R. S. (1995). The Lacey Act: America’s Premier Weapon in the Fight against Unlawful Wildlife Trafficking. Retrieved November 24, 2017 from http://scholarship.law.umt.edu/cgi/viewcontent.cgi? article=1199&context=plrlr.

Brown, D. & Swails, E. (2005). The Convention on International Trade in Endangered Species (CITES). Retrieved November 25, 2017 from https://www.odi.org/sites/odi.org.uk/files/odiassets/publications-opinion-files/4474.pdf.

Burns, W. C. (1990). CITES and the Regulation of International Trade in Endangered Species of Flora: A Critical Appraisal. Retrieved November 25, 2017 from http://elibrary.law.psu.edu/cgi/viewcontent.cgi?artic le=1115&context=psilr.

Convention on International Trade in Endangered Species of Wild Fauna and Flora: Benefits of Joining CITES. Retrieved November 24, 2017 from

https://cites.org/sites/default/files/eng/news/pr/2016 /Benefits_of_joining_CITES_REV.pdf.

Convention on International Trade in Endangered Species of Wild Fauna and Flora: Partnership Dialogue 4 – Making Fisheries Sustainable.

Retrieved November 24, 2017 from https://sustainabledevelopment.un.org/content/docu ments/13540CITES%20Input%20Partnership%20di alogues-final.pdf.

Convention on International Trade in Endangered Species of Wild Fauna and Flora: What is CITES? (n.d.). Retrieved November 24, 2017 from https://www.cites.org/eng/disc/what.php.

Cooney, R. et. al. (2016). From Poachers to Protectors: Engaging Local Communities in Solutions to Illegal Wildlife Trade. Retrieved November 27, 2017 from http://onlinelibrary.wiley.com/doi/10.1111/conl.122 94/epdf.

Drury, R. (2017). How We Work: Engaging with Communities on Illegal Wildlife Trade. Retrieved November 28, 2017 from http://www.faunaflora.org/initiatives/how-we-work-engaging-withcommunities-on-illegal-wildlife-trade/.

Engler, M. & Parry-Jones, R. (2007). Opportunity or Threat: The Role of the European Union in Global Wildlife Trade. Retrieved on November 25, 2017 from http://d2ouvy59p0dg6k.cloudfront.net/downloads/o pportunityorthreat.pdf.

Environmental Investigation Agency (2017). Illegal Trade Seizures: Rhino Horn. Retrieved November 28, 2017 from https://eia-international.org/illegaltrade-seizures-rhino-horn.

European Commission (2016). Wildlife Law Enforcement: The Vital Role of NGOs. Retrieved November 26, 2017 from http://ec.europa.eu/environment/integration/researc h/newsalert/pdf/wildlife_law_enforcement_the_vita l_role_of_NGOs_56si13_en.pdf.

Federal Register (2014). Revision of Regulations Implementing the Convention on International

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Trade in Endangered Species of Wild Fauna and Flora (CITES); Updates Following the Fifteenth meeting of the Conference of the Parties to CITES. Retrieved November 25, 2017 from https://www.federalregister.gov/documents/2014/05 /27/2014-11329/revision-of-regulationsimplementing-the-convention-on-internationaltrade-in-endangered-species-of.

Food and Agriculture Organization of the United Nations. (2016). Sustainable Wildlife Management and Gender. Retrieved November 28, 2017 from http://www.fao.org/3/a-i6574e.pdf.

International Institute for Environment and Development (2015). International Symposium Event Report. Retrieved November 26, 2017 from http://pubs.iied.org/pdfs/G03903.pdf.

International Ranger Federation (2016). Anti-Poaching In and Around Protected Areas: Training Guidelines for Field Rangers. Retrieved November 28, 2017 from http://www.internationalrangers.org/wpcontent/uploads/2017/05/Anti-poaching-TrainingGuidelines-1.pdf.

International Union for the Conservation of Nature.

(2016). Curbing Illegal Wildlife Trade: The Role of Social Network Analysis. Retrieved November 28, 2017 from https://www.iucn.org/sites/dev/files/pdf_final_wildl ife_crime.pdf.

McMurray, C. (2009). Wildlife Trafficking: U.S. Efforts to Tackle a Global Crisis. Natural Resources & Environment, 23(3), 16-18. Retrieved November 24, 2017 from http://www.jstor.org.proxy.library.cpp.edu/stable/4 0925016.

Mundy-Taylor, V. and Crook, V. (2014). Into the Deep: Implementing CITES Measures for Commercially-Valuable Sharks and Manta Rays.

Retrieved November 26, 2017 from http://ec.europa.eu/environment/cites/pdf/reports/tra ffic_pub_fisheries15.pdf.

Naim, M. (2005). Illicit: How Smugglers, Traffickers and Copycats are Hijacking the Global Economy.

Random House.

Nash, S. (2004). CITES World: Official Newsletter of the Parties. Retrieved November 28, 2017 from https://www.cites.org/sites/default/files/eng/news/w orld/13.pdf.

Scarcelli, M. (2017). Transnational Crime. Lecture presented at the California State Polytechnic University, Pomona.

Stoner, S., Krishnasamy, K., Wittmann, T., Delean, S. and Cassey, P. (2016). Reduced to Kkin and Bones Re-examined: Full analysis. An Analysis of Tiger Seizures from 13 Range Countries from 2000-2015.

Retrieved November 27, 2017 from http://www.changewildlifeconsumers.org/wpcontent/uploads/2016/03/Reduced-to-Skin-andBones-Re-examined-Full-Analysis.pdf.

TRAFFIC (2008). Wildlife Trade: What is it?

Retrieved November 24, 2017 from http://www.traffic.org/trade/.

United Nations (2017). What is the Difference Between Signing, Ratification, and Accession of UN Treaties? Retrieved November 25, 2017 from http://ask.un.org/faq/14594.

United Nations Office on Drugs and Crime (2016).

World Wildlife Crime Report: Trafficking in Protected Species. Retrieved November 24, 2017 from

https://www.unodc.org/documents/data-andanalysis/wildlife/World_Wildlife_Crime_Rep ort_2016_final.pdf.

United States and Barack Obama. (2014). National Strategy for Combating Wildlife Trafficking.

Retrieved November 28, 2017 from

https://obamawhitehouse.archives.gov/sites/de fault/files/docs/nationalstrategywildlifetraffick ing.pdf.

United States Department of State. (2017). Wildlife Trafficking. Retrieved November 24, 2017 from

https://www.state.gov/e/oes/ecw/wlt/.

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United States Government Accountability Office (2016). Combating Wildlife Trafficking: Agencies are Taking a Range of Actions, but the Task Force Lacks Performance Targets for Assessing Progress.

Retrieved November 24, 2017 from

http://www.gao.gov/assets/680/679968.pdf.

Wilson-Wilde, L. (2010) Wildlife Crime: A Global Problem. Retrieved November 26, 2017 from

http://www.cfr.washington.edu/classes.esrm.4 58/fwdesrm458readingsreenvironmentalethics conservation/WilsonWilde.%202010.%20Wildlife%20Crime.%20 A%20Global%20Problem.pdf.

http://d2ouvy59p0dg6k.cloudfront.net/downlo ads/wildlife_trade_factsheet2006.pdf.

World Wildlife Fund (2017). Traffic: The Wildlife Trade Monitoring Network. Retrieved November 24, 2017 from

https://www.worldwildlife.org/about.

World Wildlife Fund (2017). Wildlife Crime Technology Project. Retrieved November 28, 2017 From

https://www.worldwildlife.org/projects/wildlif e-crime-technology-project.

World Trade Organization (2008). World Trade Report 2008. Retrieved November 24, 2017 from

World Wildlife Fund & TRAFFIC (2016). Wildlife Crime Initiative: Annual Update 2016. Retrieved November 28, 2017 from

World Trade Organization & CITES (2015). CITES and the WTO: Enhancing Cooperation for Sustainable Development. Retrieved November 26, 2017 from

Wyler, L. S. & Sheikh, P. A. (2008). International Illegal Trade in Wildlife: Threats and U.S.Policy.

Retrieved November 24, 2017 from

World Wildlife Fund (2017). CITES: Ensuring that Species are not Threatened by International Trade.

Retrieved November 23, 2017 from

Wyler, L. S. & Sheikh, P. A. (2013). International Illegal Trade in Wildlife: Threats and U.S.Policy.

Retrieved November 24, 2017 from

https://www.wto.org/english/res_e/booksp_e/a nrep_e/world_trade_report08_e.pdf.

https://cites.org/sites/default/files/i/news/2015/ CITES_WTO_Brochure_72.pdf.

http://wwf.panda.org/what_we_do/how_we_w ork/policy/conventions/cites/.

World Wildlife Fund (2012). Fighting Illicit Wildlife Trafficking: A Consultation with Governments.

Retrieved November 28, 2017 from

https://www.worldwildlife.org/publications/fig hting-illicit-wildlife-trafficking-aconsultation-with-governments.

World Wildlife Fund (2017). Illegal Wildlife Trade: Overview. Retrieved November 24, 2017 from

https://www.worldwildlife.org/threats/illegalwildlife-trade.

World Wildlife Fund (2006). Species Fact Sheet: Illegal and Unsustainable Wildlife Trade. Retrieved November 24, 2017 from

https://c402277.ssl.cf1.rackcdn.com/publicatio ns/1002/files/original/WWF-WCI-AnnualUpdate-2016-FINAL.pdf?1490797736.

http://www.dtic.mil/docs/citations/ADA48648 6.

https://pdfs.semanticscholar.org/e3c5/9b08099 58776883f50b9ad30c7a1024074f5.pdf.

Joshua S. Ebiner

Joshua is graduating this June with a double major in Political Science and Philosophy. This summer, he will be conducting a research project in Turkey through the Turkish Heritage Organization’s Summer 2018 Research Program, “Refugees and Asylum-Seekers in Turkey: Challenges, Opportunities, and Approaches.”

Email: jsebiner@cpp.edu

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Thomas Anthony Genova

COMPARATIVE POLITICS Section B

The reality of anti-monopoly legislation in wealthy nations: a comprehensive analysis Thomas Anthony Genova *

Abstract When it comes to researching a topic often we choose what we find interesting or important to be studied as to give insight on a potential problem or issue. The goal of this research paper is to determine: Why do wealthier countries that have AntiMonopoly Legislation, differ in their enforcement? In order to accomplish this, we must understand what exactly we are defining when we say “anti-trust legislation”. Using Merriam-Webster’s definition of anti-trust: "of, relating to, or being legislation against or opposition to trusts or combinations; specifically: consisting of laws to protect trade and commerce from unlawful restrains and monopolies of unfair business practices”. In that we will be looking at what the cohesive binding material for which these countries have in common together. This is done to breakdown concepts that will aid our understanding of why the chosen countries in this study do in fact have anti-trust type legislation. The binding agent that will be employed in this study is the wealth of countries; The United States of America, The Peoples Republic of China, Japan and Germany. Each of these countries has been selected for this study because of their wealth comparison between other countries around the globe. Also, these countries currently have anti-monopoly laws but the reality to the situation is that not all laws are created equal. This notion is exemplified by the nations themselves in having similar laws while still maintaining their countries own culture. © 2018 California State Polytechnic University, Pomona. All rights reserved "Keywords: corruption; income inequality; comparison; politics"

——— * Created by Thomas Genova, Department of Political Science, California State Polytechnic University, Pomona for his senior thesis project.

Correspondence concerning this research paper should be addressed to Thomas Genova, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: Tagenova@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 21-45. © 2018, Political Science Department, California State Polytechnic University, Pomona

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1. Introduction Political science is a broad field of research with many different facets of fields of study. It is through this research paper that we ask: Why do wealthier countries have Anti-Monopoly Legislation, differ in their enforcement? This question is simple enough to understand and will be explained using a qualitative approach that will analyze the existence of anti-trust legislation in four different countries. For this research paper we will be examining the policy implemented by these nations, so that we may better comprehend the realities of anti-trust type legislation. This thesis seeks to answer various questions. First, what does the term antimonopoly actually mean? Why is anti-monopoly an important topic to talk about? Who employs these antimonopoly laws? Why is there a demand for this type of legal doctrine in these selected countries? Finally, what countries will we be examining for our research? These questions must be asked so that there can be better comprehension of the reasoning behind the supposed need for anti-trust legislation. Based on the questions outlined, we can start to see what this paper aims to study: Why do wealthier countries that have AntiMonopoly Legislation, differ in their enforcement? The United States government and economy is vastly different than the likes of China. China's government and economics is also operated differently than that of the Japanese and German governments, which is why we aim to study the differences of how each country operates in respect to anti-trust legislation.

We will be creating this analysis using government websites, legal codes, legislative pages, university produced research and peer-reviewed academic journals on the matters of anti-monopoly. We will see that each of the countries in this paper have anti-trust laws that all vary in their success. The success of these anti-trust laws is determined by how each of these countries governments constrain or bolster their legislation. Some countries will operate with stricter rules on monopolies, while others will have anti-trust legislation that appears

to work but will be found to be somewhat ineffective.

For clarity sake, we will focus on the following countries in order of (1) The United States of America, (2) The People's Republic of China, (3) Japan and (4) Germany to provide consistency throughout this research. The sections ahead will be divided up to provide the reader insight that will explain why these countries have worked to implement this legislation.

2. Literature Review A template Throughout world history we have seen the rise of anti-trust laws effectively barring the allowance of monopolization within a country. When it comes to the countries we have chosen for this research assignment, we will break each down into multiple parts for analyzing needs. This breakdown will be done to provide clarity to the reader as for why exactly antimonopoly policies are present in wealthy nations. It is also in this section where we will introduce our dependent variable and our independent variables.

In the following sections of this paper we will discuss each of the dependent variables in depth. The three main dependent variables that we will discuss will be (1) enforcement, by how it is handled and by whom, (2) how mergers and other corruptible offenses have played out in these countries that have Anti-Monopoly Laws and also (3) how anti-monopoly laws if applied effectively can aid one’s economy. Since the United States, the Republic of China, Japan and Germany all have antitrust policies, we can see that this is our constant between each of the countries. This constant will allow the reader to better comprehend the reality of how wealthier nations implement these laws to influence their economies.

Moving forward, we will bring in our independent variables, as it should be noted that there are multiple potential variables to consider throughout this paper. An independent variable, sometimes called an experimental or predictor variable, is a variable that is being manipulated in an experiment in order to observe the effect on a dependent variable. The independent

Thomas Anthony Genova

variables we will be examining throughout this analysis are (1) Enforcement via Independent Agencies, (2) Corruption, and lastly (3) Economic Inequality within a country.

The analysis of this paper will show that the factor of Enforcement through an Independent Agency, is key for having effective legislation that curtails monopolistic behavior. An independent agency is also known as independent regulatory agency or independent regulatory commission. These agencies are often the ones creating and enforcing anti-monopoly rules. Our second independent variable, Corruption, can be seen in either private or public sectors and as a plausible reason for explaining why a country might see the need to implement or strengthen anti-trust laws. Finally, we have our last independent variable, Economic Inequality.

Economic Inequality can be seen as a root cause for why there might be calls for anti-monopoly type legislation to be drafted and implemented. It is in this next section where we will briefly breakdown each of the independent variables in each of the 4 countries chosen.

2.1. Enforcement (United States, China, Japan, Germany) As mentioned in earlier in this research analysis, our first independent variable is: Enforcement via Independent Agencies. This leads us to ask, who enforces anti-monopoly laws? How well do these agencies enforce anti-monopoly laws?

In this section, we will focus briefly on the United States of America. Our goal in this section of the paper is to bring some contextual history as to what or who controls the actual enforcement of anti-trust laws against those who break said laws. For the United States, we know that the Federal Trade Commission (FTC) is an independent agency, although still part of the government but it wasn’t always independent. This is where we will look at the American journal of Political Science “What Makes an Agency Independent?” by Jennifer L. Selin, where she explains that although the

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FTC is an independent agency, it has before been targeted by a U.S. president to be altered in his favor.

“In 1993, President Roosevelt asked William Humphrey, a federal trade commissioner, for his resignation from the federal trade commission FTC. Roosevelt felt [that] the work of the commission [could] be carried out most effectively with Roosevelt-appointed commissioners… Humphrey declined to resign. A lawsuit ensued, making its way to the U.S. Supreme Court. After hearing the case in 1935, the Court held that appointees at the head of agencies structured like the FTC are protected from removal by the president for political reasons.” (Selin, 2015)

So, in terms of the United States, we see that regardless of who the current president is, the commission is relatively safe from the politics of the presidency due to the Supreme Court ruling.

Furthermore, the Department of Justice has also worked in conjunction with the FTC on handling cases that involve anti-trust policy. Referencing the American Bar Association’s academic journal, “Dual Enforcement of the Anti-Trust Laws by the Department of Justice and the FTC: The Liaison Procedure” David L. Roll where he states that there is a real reason why both of the independent agencies have the ability to prosecute antitrust legislation violators “Congress found that the Sherman Act, which can only be governmentally enforced by the Justice Department, was inadequate to meet the growing problems of the trade restraints. The Federal Trade Commission Act was, therefore, enacted for the purpose of reaching all practices injurious to the maintenance of free competition even though some might not meet Sherman act requirements.

Thus, ever violation of the Sherman Act also violated the Federal Trade Commission Act.” (Roll, 1976, 2076).

This meshing of the Federal Trade Commission Act and the Sherman Act, that if violated, allows for either independent agency to enforce the penalties of breaking the anti-trust rules in the United States.

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For the second country in this section, we will be looking at the Peoples Republic of China. Up until 2008, the Republic of China did not actually have an effective system in place to combat monopolistic behavior. Before 2008, it was rather all over the place in terms of who actually drafts and enforces these anti-trust laws. When examining the issues of the early days of anti-trust laws in terms of enforcement in China, we reference the academic journal “China’s Competition Policy Reforms: The Anti-Monopoly Law and Beyond” by Bruce M Owen, Su Sun and Wentong Zheng “China’s laws and regulations prior to the [Anti-Monopoly law] were fragmented, vague, and repetitive, and the effectiveness of antitrust enforcement was hampered by the existence of multiple enforcement agencies authorized by different laws” (Owen, Sun, Zheng, 2008, 236). The creation of a comprehensive anti-monopoly law finally became a reality on August 1st, 2008, when China implemented the Anti-Monopoly Legislation (AML). The simplifying of the new AML in China, in terms of actual enforcement, can be explained via the website FDI.Gov.Cn where it states the rules and provisions of each chapter in the AML law, specifically Chapter 1, Article 9 “The State Council shall established the Antimonopoly Commission, which is in charge of organizing, coordinating, guiding anti-monopoly work… The State Council shall stipulate composition and working rules of the Anti-Monopoly Commission” (FDI Invest in China, 2007).

Furthermore, the implementation of the AML China would create three Independent Agencies to govern the enforcement and creation of these new laws. First, The Ministry of Commerce (MOFCOM) which is responsible for merger controls (Crosswell, Baker, Mckenzie, 2016). The State Administration for Industry and Commerce (SAIC) which is responsible for enforcing the prohibition against monopoly agreements, abuses of dominant market position and abuses of administrative powers to eliminate and restrict competition (Crosswell, Baker, Mckenzie, 2016).

Lastly, The National Development and Reform Commission (NDRC) which is responsible for the “Enforce[ment] of the price related rules of the AML

(including anti-competitive agreements and abuse of dominance)” (Slaughter & May, 2016, 2). Each of these agencies are responsible for their own creation and implementation of AMLs, in their respective jurisdictions.

Moving along to the country of Japan, we once again aim to create a clearer picture of the Independent Agencies that would be responsible for the actual enforcement of Japans AML. When it comes to Japan, it must be noted that their economy after World War II desperately needed to change in order to rebound from the loss of the war. These changes were seen as drastic in nature. Considering how it was previously understood, at least within the Japanese community, working with one’s competitors in monopolistic ways wasn’t out of the ordinary.

To explain this, we will use the academic journal titled “Where Japanese Competition Policy is going – Prospect and Reality of Japan-” by Akinori Uesugi, the ex-secretary-general of the Japanese FTC where he claims that 1947 Japan “During high-growth periods, it was natural for the industrial policy consideration to be given priority over competition policy. So long as Japanese business community believes that the economic success of Japan was brought about by successful industrial policy by MITI or other competent ministry and by having close relationship between the government and business, there were no room in Japan for “competition culture” to grow” (Uesugi, 2004, 3).

However, the need to join the World in an international economy meant that Japan would have to create and somehow enforce anti-competition rules that previously would have been ignored or circumvented.

Thus, we see the rise of the Japan Fair Trade Commission (JFTC) and the work of Japans Prime Minister Kiozumi in 2001. Prime Minister Kiozumi worked to turn the JFTC into an organization that would be independent from the pressures of ever changing political world. To quote the scholarly article “The Development of Antitrust in China, Korea, and Japan;

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International Competition Law: Real World Issues and Strategies for Success” by Deirdre Shanahan “The JFTC at the time was a subsidiary agency of the Ministry of Public Management, Home Affairs, post and Telecommunications. In April 2003, the JFTC was transferred to the jurisdiction of the Cabinet Office and achieved the status of an independent agency” (Shanahan, 2005, 3). This would be a long transformation from a society where competition in industry was considered second to business consolidation. To then in 2001, where Japan's Prime Minister presented the idea of an independent agency, that is free from the ebbs and flows of politics.

Finally, the last country in this section is Germany.

Germany, much like Japan, needed to restructure their economy and politics after World War II, as their economy was in shambles. This means that a transition from Germany’s old policies, of allowing mergers along with the allowance of cartels in industries, would have been made. This realization would lead to the eventual creation of the Bundeskartellamt: The Federal Cartel Office (FCO). The Bundeskartellamt was established January 1st, 1958 based off of the Act Against Restraints of Competition (ARC) which gives it its power of enforcement of antitrust policies in Germany.

Referencing the Bundeskartellamt website directly, we see that for all intents and purposes, the FCO being established with the mindset that “The Bundeskartellamt [would be] an independent competition authority whose task is to protect competition in Germany. The protection of competition is a key regulatory policy objective in a market economy” (Bundeskartellamt, 2018). The similarity between the FCO and the FTC can be seen as a derivative of World War II, where Germany adopted policies in terms of anti-trust laws that the FTC already had in place. Referencing the academic article “The 1980 Amendment and Other Recent Developments in German Antitrust Law” by Alexander Riesenkampff, states that, “the degree of Sophistication in this area [anti-monopoly laws] in Germany, only after having adopted U.S. antitrust philosophies after World War II has long relied upon and benefits from [the] U.S. experience” (Riesenkampff, 1981, 615). Using the

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knowledge, facts, and resources of the international community Germany was able to successful establish and strengthen its independent enforcement agency.

2.2. Corruption (United States, China, Japan, Germany) The second factor we aim to discuss comes from a simple concept; Corruption. We examine the concept of corruption in terms of antitrust laws. This factor is analyzed because of the understanding that corruption has the propensity to limit the effectiveness of antitrust laws in instances of merger monopolization, bid-rigging, and other offenses. We should first understand what is meant by a merger. Using the legal-dictionary's definition, it states that Merger(s): “In corporate law, the joined together of two corporations in which one corporation transfers all of its assets to the other, which continues to exist. In effect one corporation “swallows” the other [corporation]” (TheFreeDictionary.com, 2018). Another term that we will be using is: bid-rigging.

Bid-rigging can be used in many contexts, however “one frequent form is when competitors agree in advance which firm will win the bid. For instance, competitors may agree to take turns being the low bidder, or sit out of a bidding round, or provide unacceptable bids to cover up a bid-rigging scheme” (FederalTradeCommission, 2018), as explained by the U.S. FTC. Finally, we will employ the issues of corruption in terms of cartels within each of the countries. For the purposes of this thesis, Cartels are defined as, a group of producers that work together to protect their interests. Once formed, cartels can fix prices for members so that competition on price is avoided. The reality is that when we talk about corruption in the upcoming sections, the reader will understand there is a real quantifiable need to strengthen or even implement new antitrust policies aimed directly at the prohibition of corruption, whether there are public or private entities operating within the country.

Starting off with our first example in this section, we will look at the realities of the United States and how corruption has led to the strengthening and implementation of new antitrust laws. We talk about

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these instances as further evidence to suggest there is in fact a strong need for comprehensive antitrust policies to be implemented, in order to protect the consumer from manipulated businesses practices. For this to start to making sense, let us begin examining our first example.

Looking at the academic analysis “The Anti-Corruption and Antitrust Connection” by Josh Goodman, an exattorney of the FTC, as he expresses that “The FTC and Congressional investigations revealed widespread corporate bribery of foreign government officials by many America Corporations... [In] an investigation commissioned by a special committee of Lockheed's outside directors found that Lockheed had paid more than 30 million in bribes from 1970 to 1975 to influential figures.” (Goodman, 2013, 1) Lockheed's documented corruption would result in the arresting of former Japanese Prime Minister Kakuei Tanaka. The reality of this arrest and with Lockheed in the public light created a negative image of businesses in the United States. So much so, that the need bolster current antitrust laws to be able to effectively combat this type of monopolist collusion spurred via bribery was worked on almost immediately, thus the implementation of the Foreign Corruption Practices Act. However, not all laws are created equally, in terms of their ability to effectively prohibit corruption. If we look to a recent 2015 article posted by Competition Policy International titled “CPI Antitrust Chronicle” it shows the reality of sub-par prohibitive legislation where again we see “despite corruption acts being committed by one of Morgan Stanley's managing directors, the company avoided liability for violating anti-corruption regulations due to compliance procedures” (Thépot, 2015, 5). So the fact that the company, Morgan Stanley, effectively had their loophole in order (the compliance procedures) they were able to game the system in their benefit.

Moving on to the country of China, we will examine the instances that have helped in influencing the need for antitrust, anti-monopoly or anti-competition laws.

Whether you are living in China or anywhere else in the world, the practice of corruption actions for personal gain can be seen pretty much everywhere. China has worked hard to transition from its centrally-planned

economy to a hub of manufacturing and exporting products for trade, all the while basing their competition laws off of American, British and others who have had this type of legislation. So it makes sense that we see the Peoples Republic of China preemptively working to reduce the possibilities of “bribery, deceptive advertising, coercive sales, and appropriation of business secrets” (Owen, Sun, Zheng, 2008, 233). We even see that in response to the 2007-2008 housing crash, that was started in the United States, made its way to China. Due to this, the Chinese government has taken very recent steps to ensure the corrupted policies that allowed for this to happen do not happen again. An update of China's Anti-Unfair Competition Law was made as of January 1st, 2018. In this update the following clauses were added to help expand the reach of the enforcement agency, “(1) Places no limit on bribery in the context of selling or purchasing goods.

Bribing in order to seek transaction opportunities or competitive edge is prohibited. (2) Expands the category of bribe recipients to include: entities or individuals that use authority or influence to influence a transaction” (Wombolt, Hunt, Phillips, 2018). The expansion of the anti-unfair competition law has enabled China to work more efficiently at slowing down or halting the unethical behavior of bribing people for political, business, or social favors. Does this mean that China is absolutely corruption free? Not in the slightest, but the steps taken here will aid their economy in a friendlier manner by stopping practices of bribery, stock market manipulation, etc.

Continuing on with our research analysis, we will now look to the country of Japan to better understand how corruption has played a key role in leading Japan to implement antitrust policies, which are aimed at limiting corruption. Referencing Global Legal Insights website they give historical context to the corruption that has been prevalent in Japan right around the turn of the 21st century “Corruption had been prevalent feature of Japan's post-war economic boom, which was built on a close-knit alliance [Japanese businesses, politicians, and elite bureaucrats]... it also created a culture of secret, backroom dealings which, when exposed, shocked the

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public” (Yoshida & Park, 2018). The revelations that made it into the public atmosphere would be large enough to bring down multiple Japanese Prime Ministers; PM Kakuei Tanaka (1976), PM Noboru Takeshita. Subsequently, even closer to the turn of the century Japan would see even more arrests, resignations, and even suicides of high-ranking finance officials (Yoshida & Park, 2018). Japan although working to implement new policies aimed at curbing corruption of public or private entities, is still exemplifying corruptible tendencies even with laws prohibiting such acts. The issue of “bid-rigging”, or as Japan refers to it Kansei-Danog, has been a problem in the country. The issue is that bid-rigging clearly stifles competition as, in Japans case, government officials are actively colluding with specific businesses to gain an unethical advantage against its competitors. Quoting the JFTC Secretary General Hideo Nakajima's report on “Prevention of bid rigging in public procurement in Japan” that the need for further legislation covering anti-monopoly subjects like bid-rigging. The implementation of The Involvement Prevention Act enacted in 2002, would allow the JFTC the “authority to require the head of procurement bodies to implement improvement measures when the JFTC finds involvement of procurement officials in the bid rigging” (Nakajima, 2014, 6).

Let us now talk about our final country, Germany, to see how corruption has led to the need and enactment of anti-trust policies. With Germany's semi-recent history, it should be clear with the losing of World War II that a restructuring of their economy would essentially be forced. In order to create a calmer atmosphere where the German citizenry did not need to worry as much about concentration of wealth, came about in the creation and enactment of the 1958 “The Act against Restraints of Competition” (ARC). However, this legislation did not have the teeth needed to criminally charge those reported to be bid-rigging or creating horizontal mergers. In turn, failing to effectively prosecute these entities that were engaging in anti-monopolistic manners would result in the following piece of legislation's eventual implementation. To quote the scholarly article “Criminal antitrust law enforcement in Germany: 'The whole point

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if lost if you keep it a secret! Why didn't you tell the world, eh?” by Florian Wagner-von Papp where he explains “The discussion about the criminalization of competition law was revived. And finally... A criminal offense of anticompetitive agreements in tendering procedures (bid-rigging) was introduced into the Criminal Code. S 298(1) StGB” (Wagner-von Papp, 2010, 6). The problem of corruption in Germany is not some sort of anomaly that is unique to Germany. Like we discussed earlier, Japan is currently dealing with issues of bribery and bid-rigging. Much like Japan, we see Germany working to create new means of protections by how “Germany is set to introduce a national single registration point for firms that have violated procurement, antitrust, and labor laws; these companies are then to be excluded from contracts and concession” (BusinessAnti-Corruption, 2018) as explained in the “Germany Corruption Report”. This creation of a public record that allows for companies, governments, and the people to pick and choose who they decide to work with will aid Germany's attempt at creating transparency within the private and public sectors. It is not perfect but the continuation along with updating of such policies will only benefit Germany as time goes on.

2.3. Economic Inequality (United States, China, Japan, Germany) The last independent factor we will talk about in this research paper is the idea of Economic Inequality.

Specifically, if economic inequality is being a catalyst of influence, resulting in the creation and implementation of anti-trust type legislation. For the purposes of this thesis, economic inequality is defined as income inequality or monetary inequality that “concerns disparity financially between various groups of individuals.” The financial dictionary explains economic inequality, “in most economies and countries, there are poor people, rich people, and then many medium classes ones which live in the middle” (HeroldsFinancialDictionary, 2018). However, the exacerbation between the poor and rich has resulted in a

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severe lack of confidence in the market and thus has created further need for strong antitrust laws to rebalance the distribution of wealth.

Moving forward with our first example, The United States of America, we see that economic-inequality can still be seen as in issue in present day America. This could be from how the publics’ wealth is effectively being redistributed to the top, instead of the masses. The fact is that in America there are people of all walks of life stationed at many different levels of the income spectrum. We have also seen in America, at least in recent years, as noted by Asher Schechter of the editorial board for the University of Chicago Booth School of Business, where he explains via his article that the “rise in U.S. Wealth inequality, now [is] approaching levels last seen during the Gilded Age, is related to market power and a lax enforcement of antitrust laws” (Schechter, 2016). However, with effective use of their anti-monopoly laws, it can be used as a catalyst for increased competition and fairness in a multitude of industries, resulting in lower levels of economic inequality.

If we add in current trends, then we see even further that in-effective anti-trust policies are not strong enough to inhibit economic-inequality, as market power supersedes the anti-trusts ability to correct the regressive nature of wealth distribution from the consumers to the producers. Referencing the academic journal “Market Power and Inequality: The Antitrust Counterrevolution and Its Discontents” by Lina Khan and Sandeep Vasheesan “To borrow the words of former Federal Reserve Chairman Marriner Eccles, pervasive market power in an economy is likely to operate as a giant suction pump... draw[ing] into a few hands of an increasing portion of currently produced wealth” (Khan & Vaheesan, 2017, 239). Currently, this is the reality in America that has not been addressed.

Now we will focus on our second country in this research, the Peoples Republic of China. China's transformation from a centrally-planned closedeconomy into that of an international hub for manufacturing and trading globally is still dealing with issues of economic-inequality. China is currently

experiencing large levels of economic-inequality that can be seen as brought about due to a resulting effect of weak anti-trust laws. However, only in recent years the need to combat economic-inequality has come to the fore front in China. We see this sentiment found in the CNBC's website in an article titled “This is what China's Antitrust drive is really about” by Leslie Shaffer where the Chinese government is “worried about wealth inequality... in the wake of the mainland’s economic slowdown, many wealthy individuals are continuing to benefit even as average consumers struggle” (Shaffer, 2014). In that, Chinese officials and their citizenry see that something is inherently flawed with how things are operating. The reality of China's situation is outlined in Jacob S. Schneider's article “Administrative Monopoly and China's New Anti-Monopoly law: Lessons from Europe's States Aid Doctrine” where he illustrates the reality of what, not having an anti-trust policy could result in “Economic theory generally holds that administrative monopolies, like other monopolies, hamper overall social welfare with increased prices, reduced output, and reduced competition.... and potentially weakening the political unity of the [the nation]” (Schneider, 2010, 817). Also, with China being so highly populated and its vast rural villages and towns compared to urban cities, economic inequality will continue to rise to unconscionable levels if not for this new insight of the Chinese government.

The next country is Japan. In this research analysis, the focus is to see whether or not inequality can be seen as a plausible factor for explaining why there is a need for anti-trust type policies. One of the issues that Japan, like much of the world, is experiencing is the proliferation or a looting of the consumer. However, something that should be noted comes from the book “The Japanese Economy” by Victor Argy and Leslie Stein, where they highlight the positive side effects of having implemented their first antitrust reforms after World War II “The ultimate impact of the anti-monopoly legislation is difficult to assess. It served to reduce the degree of economic concentration and to increase industry competitiveness. It almost certainly reduced the degree of income inequality.” (Argy & Stein, 1997, 15).

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Potentially, an unexpected result of working to make Japans economy more competitively fair that the citizenry become less-unequal. However, again in recent times due to an ever changing political and economic atmosphere, this proliferation of wealth from the citizenry is effectively shrinking the consumer bases “purchasing power”. A relatively new concept to emerge in Japan comes from the article “Inequality in Japan: What Can Be Done?” by Anthony Atkinson, suggesting a tweaking of antitrust policies in such a manner that would result in reducing economic inequality “There are many steps that could be taken, including introducing distributional considerations into anti-monopoly policy, ensuring a proper balance that between the powers of employers and workers” (Atkinson, 2015). Updating Japan's JFTC and subsequently anti-monopoly law to include this concept could lead to a more equal society.

Reaching our last independent variable, we will now look at Germany. Like the previous 3 examples in this section, we will also look at Economic Inequality to better understand how Germany has led to the implementation or bolstering of anti-trust laws. The current focus of the German FCO resembles that of Japans JFTC. The resemblance is seen, in that, larger corporations are effectively possessing concentrated areas of the market, which is prohibiting smaller corporations from participation in those markets. This creates more concentration of power for large corporations. Referencing the article “Germany: The Federal Cartel Office” the author Andreas Mundt explains that “Due to growing concentration in this sector, the complaints of manufactures about the huge market power of the retailers are likely to increase rather than decrease.” (Mundt, 2017) Essentially suggesting that if this imbalance is allowed to continue on its current path it will only exacerbate inequalities between large corporations and their market power versus whatever competition may be left. The reality of what we are seeing is an expanding market power by larger corporations. However, another reality is that this particular problem as has not yet been effectively studied for better understand as to how to tweak anti-monopoly laws in an effective manner to reduce this problem.

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3. Case Analysis by Country Moving on to this part of our research, we will examine each of the countries listed in a more detailed manner to help quantify the differences of each countries governmental operation.

Much like previous sections we will break this part down into the following countries: (1) United States: Enforcement, Corruption, and Economic Inequality, (2) The Peoples Republic of China: Enforcement, Corruption, and Economic Inequality, (3) Japan: Enforcement, Corruption, and Economic Inequality, (4) Germany: Enforcement, Corruption, and Economic Inequality. What we aim to get out of this section is a much more quantifiable understanding of the independent factors we have employed, as to better explain or give insight to our initial research question; why do wealthier countries that have anti-monopoly legislation, differ in their enforcement? It is also in this upcoming section that we will use the most recent data collected from the “Corruption Perception Index” which measures corruption on a scale of 0 to 100, where 0 correlates to “Highly Corrupt” and 100 correlates to “Very Clean”. Then also, the “Gini Coefficient” that is measured on a scale of 0 to 1, where 0 correlates to “Very Equal Society”, and 1 correlates to “Very Unequal Society.” This is used to aid this analysis with further statistical evidence, for a better comprehension of how much actual corruption and economic inequality is prevalent in each of the chosen countries.

3.1. The United States of America Starting off with the United States, we will talk about the enforcement of anti-monopoly laws through Independent Agencies, as previously outlined in earlier sections: (1) Federal Trade Commission and (2) The Department of Justice's Antitrust Division. Now we initially asked “Why do wealthier countries that have Anti-monopoly Legislation, differ in enforcement?” due to the understanding that the countries in this research analysis are the performers of nominal gross domestic product that also already have anti-monopoly laws

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(Bajpai, 2017). The correlation between antitrust laws and wealth of a nation can be better understood through the “Hart-Scott-Rodino Annual Report: Fiscal Year 2016” on the United States' FTC and the Antitrust Division of the DOJ. This report shows that some of the successes America has enjoyed economically can be seen as a derivative of implementing these laws and thus, the independent agencies tasked with the enforcement of anti-trust laws. The report shows that the Antitrust Division challenged 25 merger transactions and 15 of these challenges involved a complaint to the U.S. District Court by the Antitrust Division (Ohlhausen & Delrahim, 2016, 2). The report goes on to say that nine of the 15 filed complaints had proposed settlements incorporated in them to provide clearer defined rules for those corporations, three of the 15 cases wholeheartedly abandoned the proposed merger transaction, and the remaining 3 cases of the initial 15 pursued litigation (Ohlhausen & Delrahim, 2016, 2). With respect to the other ten challenges by the Antitrust Division, four involved parties abandoning their transactions in light of the competitive concerns identified by the Division and the remaining six involved the parties restructuring their transactions to resolve the Division’s concerns (Ohlhausen & Delrahim, 2016, 2).

In another report from the FTC and DOJ Antitrust Division, companies like Halliburton Co. and Baker Hughes, Inc. abandoned their proposed merger less than a month after the DOJ's Antitrust Division filed its complaint. These companies are giants in their respective fields yet the Antitrust Division was able to make them stop dead in their tracks on this proposed unfair merger that would have consolidated competition while increasing the levels of inequality in that specific industry. In another instance related to the healthcare industry, the FTC via its website had concluded that “the FTC has prevented anti-competitive agreements among health care providers to fix the prices they charge to a health insurance plan, conduct likely to raise prices without improving care (Federal Trade Commission, 2009). Thus in the US, we can see that these independent enforcement agencies are able to actually stop consolidation of monopolizing industries.

A plausible factor giving reason for why the United States employs antitrust laws is corruption. To better understand its effect, we will be employing the most recent data gathered by Transparency International in their “Corruption Perceptions Index: 2016” report. This is where we will see a measurement of how much actual corruption flows through the country. Starting off with some clear cut examples of corruption and how the FTC or DOJ's Antitrust Divisions have handled these problems, we will reference the Organization for Economic Co-operation and Development's (OCED) “Global Forum on Competition” reports where instances of bid-rigging has been prosecuted: “The defendant sewer rehabilitation contractors and engineering firms [of Birmingham, Alabama] sought to subvert the competitive bid process by making more than $1 million in bribes to corrupt officials responsible for oversight of the project... Twenty-one defendants-- seven county officials, nine individual contractors, and give firms-- were convicted... The bribery scheme cost county taxpayers tens of millions of dollars in losses due to fraud, overcharges, and misappropriated resources” (Thiemann, 2014, 4).

Despite substantial losses, the DOJ's Antitrust Division was able to get back upwards of 45 million dollars in payment restitution.

Let us now add in the “Corruption Perceptions Index” as it will aid us in our betterment of understanding how much corruption permeates the United States. The U.S. as of 2016 has been given a grade of (74) out of 100 (TradeEconomics, 2018). Transparency International explains that “Higher-ranked countries tend to have higher degrees of press freedom, stronger standards of integrity for public officials, and independent judicial systems” (TransparencyInternational, 2018). It goes further on by explaining that no country is 100% “clean of Corruption” and that even though some countries have a high rank they still exhibit corruptible tendencies. A score of 74 out of 100 is not bad but it does show that the United States still has a way to go if they want to create society that is less corrupt or corruptible.

Thomas Anthony Genova

For the last topic on the United States sub-section of this comparative analysis, we will focus on Economic Inequality within the United States to see if that too can be considered a realistic factor as for why countries implement these anti-trust laws. It is also in this section where we will talk about the Gini Coefficient Index to further help explain the realities within the United States and how it ranks in terms of economic inequality within its borders. John Sherman, the senator whose name presides on the 1890 antitrust law The Sherman Act explains the absolute need for antitrust laws when he states “No social problem is more threatening than the inequality of condition, of wealth, and opportunity that has grown within a single generation out of the concentration of capital into vast combinations to control production and trade and to break down competition.” referenced from New America Foundation article titled “Monopoly and Inequality”. If markets were allowed to condense and thus monopolize, communities that once used to buy goods at a local small business that would then turn around and buy directly back from the community, are no longer acting in that manner.

Monopolies act as a suction pump pilfering the populace out of their money and thus their economic pathway away from inequality.

An example of this consolidation leading to inequality comes about from the Washington Post’s article “How American Became Uncompetitive and Unequal” by Lina Khan who is the Policy Analyst for the Market, Enterprise and Resiliency Initiative at the New America Foundation and Sandeep Vaheesan who is a special Counsel at the American Antitrust Institute which explains that: “Diminished competition also increases inequality by empowering corporations to drive down the incomes of workers.... Top executives at Google, Apple, Intel, Intuit, Pixar and Adobe made secret agreements to not recruit one another's employees in order to suppress salaries... [going even further] a class of 20,000 nurses claims that collusion by hospitals in the metropolitan area [Detroit, MI] cost them more than $400 million in collective pay from 2002 to 2006... [and finally] meat processors have left many

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farmers subject to the whims of individual companies, [such as] Tyson [Foods] cut what they pay farmers and raise their own profit margins” (Khan & Vaheesan, 2014).

And now it is important that we bring in the Gini Coefficient since that will give us a measure of how unequal the United States is. Looking at the Gini Coefficient which uses data collected by the OCED, we see that the United States is currently scored as having a .39, as of 2014. Comparing this .39 score for the U.S. to some African countries that have high levels of economic inequality yet rank roughly around the .5 mark, it doesn't sit well that The United States of America is that high on the list in terms of economic inequality while presenting to the world an image of “freedom and fairness”.

3.2. The People’s Republic of China (PRC) Transitioning to the PRC, we will focus on the actual enforcement from China's Independent Agencies to better understand how effective they are in creating fairer competition allowing for greater wealth creation in China. In the Peoples Republic of China, there are (3) Independent Agencies tasked with the actual enforcement of their Anti-Monopoly laws (1) The Ministry of Commerce - MOFCOM, (2) The National Development & Reform Commission - NDRC, and also (3) The State Administration for Industry and Commerce - SAIC. Now in terms of how effective each independent agency is at enforcement in terms of fair competition we will examine judgments made by each of the agencies.

In 2016, the Ministry of Commerce (MOFCOM) heard 85 cases involving mergers or acquisitions of companies within its legal jurisdiction. However, in the time leading up to 2016 it can be seen that MOFCOM also prohibited 2 companies from attempting to merge: Coca-Cola, which was attempting to buy out the Chinese juice producer China Huiyuan Juice Group Ltd. and the group that proposed the P3 alliance: Moller-maersk, MSC Mediterranean Shipping Co and CMA-CGM

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(Slaughter & May, 2016, 17). These companies were stopped from attempting to merge together due to China's merger analysis process where MOFCOM considers the ramifications of letting companies merge: whether the merger will or may eliminate or restrict market competition (Slaughter & May, 2016, 17).

The National Development & Reform Commission that focuses on the enforcement of price related rules of the Anti-Monopoly Law has also been busy in their efforts to fend off price-related antitrust issues (Slaughter & May, 2016, 2). The NDRC has been busy working to protect the Chinese consumer in the healthcare industry from unfair pricing tactics by large dominant forces operating in the industry. In May 4, 2015, the NDRC published the Notice on reinforcing Supervision over Drug Prices. The Notice includes a range of specific issues on the supervision over drug prices, including immediately launching special inspections into illegal conduct under the pricing law and the Anti-Monopoly Law” (Mallesons, 2015). The NDRC has halted the U.S. Based tech company Qualcomm on the grounds that Qualcomm, although having been integral to China's production of superconductors, must implement a “Rectification plan”.

Rectification Plans are very much similar to reports by the United States FTC where they explain a business is operating in a manner that is incompatible with the antimonopoly laws and in Qualcomm's case, the company conflicted with the Chinese Anti-trust legislation (AML) (AsiaFreshNews, 2015). According to The New York Times article “Microsoft Faces new Scrutiny in China”

by Paul Mozur and Nick Wingfield, after Qualcomm was found to be in violation of China's Anti-monopoly law, they were promptly fined $975 million for said violation (Mozur & Wingfield, 2016).

The last enforcement agency to examine is the States Administration for Industry and Commerce (SAIC).

Once again, this specific agency is in charge of enforcing non-price related rules of the Anti-monopoly law, specifically, abuses of administrative powers to restrict competition (Slaughter & May, 2016, 2). However, we see in the previously mentioned New York Times article

the issues of Microsoft in how they have been operating in China. The SAIC had sent: “One hundred SAIC officials [to] storm four Microsoft offices in China... Chinese regulators said it was seeking answers to “major questions” [due to Microsoft being] suspected in 2014 of causing computer compatibility problems by not fully disclosing information about its windows operating system... [the] incompatibility without advance warning to customers could be regarded as being anti-competitive” (Mozur & Wingfield, 2016).

This storming of Microsoft to find “answers” resulted from the fact that in the majority of the world, Microsoft is the leader in the world of computer operating systems.

This is exemplified in the New York Times article where it states, “many Chinese companies and government offices [are still] running old Microsoft software like XP, [Microsoft's transition from XP] highlighted the countries reliance on the American company” (Mozur &Wingfield, 2016). The storming of Microsoft's offices in China was due to Microsoft no longer supporting security updates for obsolete operating systems that are known to have security structure issues. The article states that because Microsoft no longer planned to support the software, the SIAC felt a competitively unfair monopolistic play was essentially being made.

Let us now move on to our next topic of discussion which is to examine the idea of corruption being a key factor in contribution for the need of effective anti-trust laws. As in the U.S. Section of this topic, we will be examining the effectiveness of the anti-monopoly law in how it manages to limit corruption in the country and once again we will employ the Corruption Perceptions Index to better understand levels of corruption in The Peoples Republic of China. In 2013, the NDRC actively investigated 60 multi-national and domestic life science companies in conjunction to increasing costs in drug prices. This investigation would see the SAIC become involved as they alleged that commercial bribery had also taken place. The article “Combating Unfair Competition: The Convergence of China's Antitrust and Anti-Graft Enforcement Activities” by Kareena Teh and

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Fabian Roday explains how “one of those investigations culminated in a UK-based life science company being prosecuted for alleged payments of bribes to doctors of state-run hospitals and fine nearly US$500 million...

Five of the life science company's senior executives (both foreign and Chinese nationals) were also held criminally liable and sentenced to up to four years imprisonment” (Dechart, 2014). The imprisonment part of the ruling would eventually be suspended, resulting in none of these individuals going to jail, though a $500 million fine was imposed. Giving out exorbitant fines in hopes of stopping practices like these can be effective as it can be very costly for businesses to operate in such manners.

Let us now employ the Corruption Perceptions Index, on the Peoples Republic of China, to see if the recordbreaking fines that have been handed out have ultimately resulted in lower levels of corruption in China.

Currently, on the 0 to 100 scale, we see that the PRC for the year of 2016 is scored at a 40 out of 100. Being that low on the scale corroborates the fact that even today, China still has very high levels of corruption running rampant through-out the country. The Trading Economics website explains that before the implementation of such antitrust laws in the PRC, China was even more corrupt than after the implementation of the Chinese AML. With China's move to limit the levels of corruption and ultimately bring them higher up on the scale, Chinese officials passed an amendment to the Anti-Unfair Competition Law (AUCL). This amendment would, as explained in the article “Amendment to China’s Anti-Unfair Competition Law increases risk of commercial bribery and imposes tougher sanctions”, work to “create potentially greater risks for commercial bribery [seeking transaction opportunities or competitive advantage] activities in China, including exposure to increased penalties” (VanderPol, Hui, Zhu, Xie, 2017) which would aid China in reducing the severe levels of corruption in the country.

Finally, let us move on to our last topic of discussion related to China: Economic Inequality. As stated before, we will look at economic inequality as a plausible factor

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for why there are anti-trust laws in China. As we already understand, when there are severe levels of economic inequality within a country more often than not political pressure from the citizens is often the driving force for implementation of new legislation. In this section, we will be using the Gini Coefficient's to show even more existential proof of the reality's that is congruent to China. With China being a very populated society, it would make sense that they would see a wider-spread issue of economic inequality within their borders, especially in the countryside that has not seen nearly the same amounts of investment as urban cities. However, in attempting to reduce these inequalities in China, some plausible actions have been brought to the forefront as potential ways to help the Chinese citizen. The article “China's Income Gap Solution: Too Little, Too Late?” explains that: “Employees and executives in monopolistic stateowned enterprises have much higher real income than their counterparts in the private sector, mainly because they enjoy many hidden subsides... These well-connected individuals can acquire state-controlled assets, such as land, mines, and companies, at prices substantially below market [value], and then flip them quickly for windfall profits” (Pei, 2013).

This allowance of state-owned-enterprises (SOE) is hampering the ability of the general population, including private sector businesses in China to compete.

This substantive lack of control on administrativemonopolies is resulting in even more inequality within the PRC. The reality in China is that there is plenty of public pressure mounting due to “state monopolies [that] led to unreasonable price regulation imposed by biased government regulators, meaning few choices and higher prices... [Chinese citizens also] hoped that the government could put together a tough policy to crack down on all types of collusion/monopolization that tended to force consumers to pay excessive prices” (Emch, Stallibrass, 2013, 5).

Once again moving forward, let us add in the context of the Gini Coefficient to give further understanding of

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the reality of economic inequality that permeates throughout the Chinese society. Using the most recent data on China's economy we see that for the year of 2016, China was respectively scored at .465 out of 1 (TheWorldFactBook, 2018). The high number of .465 shows that there is a very high imbalance of wealth distribution within the PRC. However, at the same time we can see due to potential public pressure that when China actually implemented their AML, the continual rise of inequality was halted. Since 2008 and subsequently the AML's implementation, China has seen a trend of decreasing economic inequality. This fact provides the insight to say that antitrust laws in China have aided in the reduction of economic inequality.

3.3. Japan (JPN) Transitioning our focus to the discussion on the country of Japan, we will be looking at the Enforcement of Japan’s anti-monopoly laws through their Independent Agency: The Japanese Fair Trade Commission (JFTC). Looking at the scholarly article entitled “Reforming the Enforcement of the Japanese Antimonopoly Law”, it states, “that the independence of the JFTC from undue interference of politics is essential for fair and candid enforcement; accordingly, they believe that the existing powers of the JFTC to hold hearings and decide cases should be firmly maintained” (Matsushita, 2010, 522). This independence from politics would allow for a cooler climate in which the JFTC can work and not be held hostage by political ambitions of a potential JFTC opponent or saboteur.

In that, we already know anti-monopoly laws are used to establish fair competition within a country, be it, private or public sectors. We can see via the U.S. FTC document entitled “The Development of Antitrust in China, Korea and Japan” by Deirdre Shanahan, by which he shows the intentions of Prime Minister Kiozumi, specifically, in regards for why Japan has a real substantive need for anti-monopoly laws “[PM Kiozumi] states that the Government would strengthen the structure of the JFTC so that the agency can serve as

a guardian of the market and vigorously promote competition policy... In April 2003, the JFTC transferred jurisdictions and achieved the status of an independent agency” (Shanahan, 2005, 3). A top priority for the independent agency would be to prohibit the problem of bid-rigging in the country. Japan would bring eight companies to court over alleged claims of rigging bids for a construction project. In that the JFTC would file charges against eight of the fourteen arrested executives and another eighteen companies (Shanahan, 2005, 4).

Furthermore, in recent years Japan has been ramping up their efforts to combat domestic monopolies, but also understanding that globalization has brought about multinational corporations. This ultimately means, that the JFTC and all the amendments made to the Japanese Anti-Monopoly Act (AMA) are increasing the power this agency has at effectively prohibiting anti-trusts locally and even globally.

Now continuing on with our examination of Japan, the next potential factor of corruption in the country.

Similar to previous sections, we will focus on how corruption has helped to create influence for the need to create anti-trust laws in Japan. In that, this section will also look at the Corruption Perceptions Index, as means to further exemplify the reality in which corruption permeates in Japan. A particular issue the JFTC has been attempting to eliminate, would be the problem of bidrigging via public procurement, by public officials. This refocusing on bid rigging stems from Japan having had their biggest scandal in terms of bid-rigging where “Former Construction Minister Kishiro Nakaumra, was convicted of accepting a 10 million yen bribe from a vice-president of Kajima Corp. to pressure the [Japanese] Fair Trade Commission not to file criminal charges against suspected construction [companies, engaging in] bid-rigging” (Yoshida, 2007) as explained

by Reiji Yoshida in his article “How Japanese TaxPayers' money is lost in bid-rigging”. Moving forward, Japan would work to instill stronger punishments so that such brazen attempts to circumvent anti-monopoly laws could be prosecuted in court more easily. This is explained via the JFTC document entitled the “Global Forum on Competition: Fighting Corruption and

Thomas Anthony Genova

Promoting Competition” issued by the Organisation for Economic Co-operation and Development (OECD) “[the] Act on Elimination and Prevention of Involvement in Bid Rigging and Punishments for Acts by Employees that Harm Fairness of Bidding, was established in 2002 so that the JFTC would take the initiative in preventing and eliminating involvement to procurement agencies in bid rigging. The JFTC has been working to not only detect big rigging but also prevent and eliminate” (Thiemann, 2014, 3)

As they make solid steps forward, in attempts to eliminate this circumvention of Japanese AntiMonopoly Laws.

Moving on, let us add in the Corruption Perception Index, as it will aid in further explaining the reality of how much actual corruption permeates throughout Japan. Using the Corruption Perception Index from Transparency International's website, the most recent data from 2016 says that Japan scored a 72 out of 100 (TransparencyInternational, 2018). It makes sense, as Japan continues to work to prohibit corruptible tendencies of public officials and business leaders in backroom unsanctioned meetings. Japan from 2005 and forward would see the arrest of three prefectural governors in their attempts to rig bids (Yoshida & Park, 2018) as explained by the Global Legal insight website in the data that was collected and analyzed. The article would go further on to say that with these new aspects added into the JFTC’s Anti-Monopoly Law, shareholders of these companies were now starting to sue corporate executives on the premise that executive participation in bid-rigging schemes, actually, damaged the firm and subsequently lowered their investors profits (Yoshida & Park, 2018).

Finally, let us talk about our final factor, that is, economic inequality. We look at this factor as being another plausible explanation for why these nations that are effectively different from each other, still possess identical traits, such as having leaders in global nominal gross domestic production and all having anti-monopoly laws. Our examination of economic inequality in Japan,

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is to see if it has led to the implementation of further antitrust laws, resulting in a strengthening of competition, the economy and reducing inequalities. We will also employ the Gini Coefficient to better understand present day Japan, in terms of how much actual economic inequality is present throughout the country. However, beyond bid-rigging it has been understood that the JFTC's enforcement against cartels, be it hardcore or not, has been seemingly lacking as expressed through the scholarly analysis entitled “Can the New Antimonopoly Act Change the Japanese Business Community?” by Kazukiyo Onishi “The amended AMA introduced criminal investigation powers so that the JFTC could treat serious violations in a stricter and more effective manner. [In that] A leniency program was introduced by the amendments as an alternative approach” (Onishi, 2008, 3). This would be the Anti-Monopoly Act's first comprehensive amendment [upgrade] in the last quarter century. This came about due to the public's perceptions of the JFTC where as “JFTC has long been criticized for operating as a watchdog which did not bark or bite” (Onishi, 2008, 3).

Let’s plug in the Gini Coefficient, as we have just examined the subsequent lack of the Anti-Monopoly Law in Japan. The Gini Coefficient, with the most recent data provided by the (OECD) -2015, we see that Japan has been scored as having a .33. Japan’s ranking is considerably better when compared to China and the United States. Considering that Japan has transitioned from a once centrally-planned closed-economy to one of global trade, it can be seen as something positive that Japan is able to maintain lower levels of economic inequality. Even though they and other countries still have much work to do in ensuring a competitive playing field to allow for a more equal share of the economic pie.

3.4. Germany (GER) We will now transition to our final country of discussion, Germany. We will focus on the actual enforcement of Germany's anti-monopoly laws via its independent agency, the Bundeskartellamt: Federal Cartel Office (FCO). In order to understand this concept

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better, let us look at how the FCO has handled issues of monopolization, to see if there is a positive effect for the country. One instance we can immediately look at comes from the Florian Wagner-von Papp article mentioned earlier where he shows us that although Germany has had anti-monopoly laws for a considerably long time [1947], that they weren’t always effective at prohibiting monopolization. Due to what is known as the Pipes Cartel Case where “Between 1990 and 1996, the Preinsulated Pipes Cartel committed nearly every cardinal antitrust sin under the sun, including price-fixing, bigrigging, and the allocation of markets and specific projects to cartel members” (Wagner-von Papp, 2010, 9). Doing everything imaginable to circumvent antimonopoly laws and squash out fair competition would ultimately result in the following judgment “The court considered that a final prison sentence of 34 months, i.e. two years and ten months, and an additional fine of €100,000.00, was adequate and sufficient punishment for the main defendant” (Wagner-von Papp, 2010, 9).

However, the leader in this dubbed the “King of the Pipes” would be forced to go to jail, while the other executives did not. Another instance we can look at is to see how Germany applies their anti-monopoly laws via its FCO, comes from the e-book “OECD Economic Surveys: Germany 2006” by the (OECD); where they show the abuse of market power that the companies: Walmart, Aldi, and Lidl were claimed as having too much influence over “The Cartel Office (FCO) has justified the decision on the ground that the three discounters' [Walmart, Aldi and Lidl] conduct benefited consumers only in the short run. (in the form of lower prices), but their conduct likely would have harmed consumers in the long run as Independent grocers would have ultimately exited the market, and the three big discounters would ultimately have been able to raise their prices after” (OECD, 2006, 125).

Even though these companies were not working in conjunction with each other, like how a cartel would, they were still investigated by the FCO. This was due to the perceived route in which these large companies were

essentially bullying out [separately, of course] those who could not compete with nearly wholesale, retailing. The last example we will use for this section, comes from the Bundeskartellamt's case summary document, where we see in 2007 “Total Deutschland GmbH, Berlin intend[ed] to acquire 59 petrol stations” and because this is considered a merger within the country of German, we see the FCO investigated the proposal. The FCO would and came back with reports claiming the “purchase [of] a total of 59 petrol stations from OMV [OMV Deutschland Gmbh] ... The intended sale of the abovementioned petrol stations would lead to OMV's complete withdrawal the Federal Lander of Saxony and Thuringia” (Bundeskartellamt, 2009, 3) both being big cities that would have even less of a choice now of where to buy gas for their vehicles, resulting in further monopolization. The merger would be blocked.

Now let’s talk about the problem of corruption. This potential factor can be seen as another plausible explanation as to why Germany feels the need to have anti-monopoly laws. In that, we will be looking to see in this section how anti-monopoly laws in Germany, have helped reduce the influence of corruption. Similar to what we have done in the past three sections, we will be employing the most recent available data collected through Transparency International's Corruption Perception Index. The first example that we will talk about in terms of possible corruption comes from the Cement Cartel case back in 2003. The Cartel Damage Claims website's article “Cement Cartels” explains that “the FCO [Federal Cartel Office] imposed fines totaling EUR 702 million on twelve companies and their representatives for their participation in the German cement cartels, EUR 660 million [of which, was imposed] on the six largest German [cement] producers” (CartelDamageClaims, 2018). This scheme that was perpetrated by these colluding cement companies had been engaging in (1) illegal quotas and (2) illegal market-sharing agreements since the 1990's. In that, it was found that these companies were taking turns being the winners and losers of the contract. Going so far as to even meet in secret at airports, like Munich, to discuss

Thomas Anthony Genova

how these companies would be engaging in their illegal quotas and illegal market-sharing.

Going further we see the “Germany Corruption Report” acquired from the Business-Anti-Corruption website explains that even the airline industry has partaken in corruptible offenses “the former technical chief of the Berlin-Brandenburg airport, Jochen GroBmannm was sentenced to one year of probation and fined USD 250,000.00 for bribery, fraud and attempted bribery” (BusinessAnti-Corruption, 2018). The article would further go on by saying that because of the bidrigging attempts were made by another individual, for which was imprisoned and fined the total worth of the bribe that was accepted; EUR150,000 (BusinessAntiCorruption, 2018). However, even though these crimes were taking place, the FCO in their attempt at curtailing this type of monopolization resulting in market dominance, actually had the teeth to prosecute and send people to prison. While also fining the person who took said bribe, the total amount of the bribe. The fact that The German FCO will make you pay it back a bribe in full and potentially send you to jail, could be seen as a good deterrent for those thinking of taking a bribe.

Finally, let us use the Corruption Perception Index as means to better gauge how effective Germany has been through their implementation and strengthening of their anti-monopoly laws. Transparency International has scored Germany, the once high protectionist state was given an 81 out of 100. To say that this number is good would be an understatement. Germany having needed to make huge societal changes after the perils of World War II has beat out the likes of the United States (who is the subsequent winner of WWII), China and even Japan, its old teammate. However, this should not come as a surprise, considering Germany has continued to build their anti-monopoly laws and further strengthening them by creating stricter punishments for those found to be involved. In that, the Leniency Program, that is explained via the Bundeskartellamt's own reporting entitled “Effective Cartel Prosecution: Benefits for the economy and consumers” where it states, “The prospect of immunity from a fine creates uncertainty among cartel members as to whether one of them might blow the

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whistle at some stage to secure immunity” (Bundeskartellamt, 2016, 19). Full immunity would be granted for those who report to the FCO on matters of unknown cartel operations. While also allowing for reduced fines for those who help the FCO after they have found cartel agreements.

Finally, the last factor we will be talking about in this research analysis is the issue of economic inequality. As claimed earlier, we look to the issue of economic inequality as being a potential factor for why Germany found the need for antitrust laws. Also, like previous sections, we will employ the use of the Gini Coefficient as further existential evidence showing how much actual economic inequality permeates through Germany. To quote the President of the FCO directly, we see “Competition is a cornerstone of our economic and social order. The fact that competition leads to the best overall economic results is now undisputed” (Bundeskartellamt, 2016, 3). However, this is where we start to see for Germany, at least, how they actually use their anti-trust laws to reduce economic inequality. Their [Federal Cartel Office] approach to reducing economic inequality in the country is to punish those who decide they want to partake in monopolistic behavior.

Consolidation of businesses resulting in less economic equality and issues of bribery are at the fore front of prosecutions by the FCO. This could be understood through Ludwig Erhard, in his expression that “There have never been as many unemployed in German Economic history as in the period when cartels flourished most strongly. Cartels always have to be paid for by a lower standard of living” (Bundeskartellamt, 2016, 6). Cartels frequently bully competition out of the markets, further cementing “pun-intended” their monopolized market powers. Since Germany is special in its serious regard at reducing economic inequality, let us now plug in Germany's Gini Coefficient. Germany has been given .27 out of 1 by Transparency International. Considering every other country’s score in this analysis is .33 and up, this reflects well on their society. Potentially it is because of how determined the FCO is at eliminating unfair competition. The best explanation for this comes from “the considerable

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intensification of cartel prosecution activities has paid off... Their detection requires effective investigatory powers. The leniency programme will continue to play an essential role in this regard. The success it has achieved so far multiples its deterrent effects as cartel members trust each other less and less” (Bundeskartellamt, 2016, 34). The Bundeskartellamt report lays this out by showing that for each year the leniency program has been available, more and more people submit applications, giving guidance to the FCO as to what company they should be looking at next.

Ultimately, the better the FCO becomes at effectively prosecuting these monopolization practices, the fairer Germanys society will become. This is because competition between businesses will allow for a greater distribution of wealth.

4. Findings

After fully examining in great detail our research question: Why do wealthier countries that have AntiMonopoly Legislation, differ in their enforcement? We can finally summarize the three theories in this analysis.

In that we talked about how the United States, Republic of China, Japan and Germany have managed to (1) enforce their anti-monopoly laws: by which we see Independent Agencies as actually the ones who create and enforce anti-trust laws. In that, we found that each of the countries in this examination do indeed have these independent agencies. We then looked at how (2) antimonopoly laws can be catalyst in preventing or reducing the levels of corruption. Being that corruption can be rather hard to measure, we employed the usage of the Corruption Perception Index to allow for a clearer understanding of each country’s reality. Finally, we talked about how (3) economic inequality is also another potential factor, as we understand high levels of economic inequality can build public pressure to create and implement efficient anti-trust laws. Similar to corruption, we used the Gini Coefficient as a measuring

Table 1: Comparison of Countries Measured by Gini Coefficient

Country

AntiMonopoly Law (constant)

Enforcement

Corruption

Economic Inequality

United States of America

Yes

Independent Agency

(74) out of 100

0 - 0.39 - 1

Peoples Republic of China

Yes

Independent Agency

(40) out of 100

0 - 0.47 - 1

Japan

Yes

Independent Agency

(72) out of 100

0 - 0.33 – 1

Germany

Yes

Independent Agency

(81) out of 100

0 - 0.27 - 1

Thomas Anthony Genova

stick to better understand each of the countries and their respective inequality issues.

5. Conclusion In our conclusion for this research topic: Why do wealthier countries that have Anti-Monopoly Legislation, differ in their enforcement? This question was asked because of the interest in understanding how each of these countries, which are sitting at their respective ranks on the 2017 nominal gross domestic product charts, compared to one another. Add in the fact that these countries have very different historical backgrounds, all the while still having anti-monopoly laws. We then proceeded to examine our dependent variables throughout this paper in how (1) enforcement is handled and by whom, (2) how mergers and other corruptible offenses have played out in each country and also (3) how anti-monopoly laws, if applied effectively, can aid one’s economy. We examined these dependent variables through how we looked at our independent variables: (1) Independent Agencies: are these agencies effectively able to enforce and subsequently implement these laws. We also proceeded to examine (2) Corruption through mergers, bid-rigging and other corruptible tendencies to gain better understanding if anti-monopoly laws can reduce said tendencies. And finally, we used (3) Economic Inequality, to help us explain or better yet understand how inequality has played into the creation and implementation of these laws. In doing so, we found how these variables have helped reduce such inequalities through continual updates of said laws.

However, what was found out during this research analysis whether looking at enforcement via independent agencies, corruption, be it a public or private entity, and also economic inequality, by which unfair markets reduce the publics market power, has resulted in the following conclusion. The reality that we find is that independent agencies that create and

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implement newer stronger anti-monopoly laws can be seen as the most important factor. If these agencies were not independent and people were essentially voted into these head positions, there would be an inefficient manner in which to protect consumers. These agencies, if allowed to be politicized, could in turn be weaponized at industries that the head or president of said agency, simply does not like. We talked about F.D.R. Trying to get the FTC on his side to mesh better with his desires.

We saw how China essentially did not have this independent agency before 2008 and was all over the place on their enforcement. The only thing that did make sense in terms of China, was the need to create this agency, because of the housing crash in 2008 to stop the likes of this happening again globally without any form of repercussion. We then examined how the JFTC went after companies who tried to bribe officials into not pressing criminal charges against bid-rigging contractors. If this agency was independent, they would be ineffectively useless to prosecuting larger corporations to maintain a market balance of competitiveness. Finally, we have seen how the FCO of Germany has been able to strengthen itself by creating much stricter anti-trust rules for businesses to follow.

The only real difference between each of these countries independent anti-monopoly agencies is how much they have been developed to control society. The United States is not doing too bad but if we compare them to China, they are almost falling behind in creating stronger deterrents to those thinking to monopolize, cartelize, etc. However, Japan and Germany are very similar by how they have allowed their agencies to criminally charge and jail public officials for breaking the unfair competition doctrine rules. This is not the case in China, as they are still dealing with the reality of public officials unfairly being able to purchase stateowned-enterprises (SOE) at below market value, to in turn sell them for an unethical profit.

However, our initial belief that the idea of corruption being a potential factor is not as important as one would have hoped. For the United States, there are still issues of corruption through legal loopholes in the antimonopoly laws. For example, the four meat processors

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Undergraduate Journal of Political Science

in the United States effectively cornering the market and subsequently being allowed to dictate to farmers what prices they will be paying for such products which should be the other way around. Also, in China, by how their AML's can be seen as almost protectionist in nature for how they are applied against foreign companies working in the country, more so than Chinese businesses operating in the country. Now, Japan still has issues with corruption where multiple prime ministers have gone to jail, but they have worked to make it less prevalent within their country. They have done so by how they have continued to bolster their anti-monopoly laws, which has resulted in them being ranked considerably better than the U.S. and China. Finally, Germany can be seen as having the best score of them all, in terms of amounts of corruption, but once again comparing it to the United States, China and Japan we begin to see that this theory is not consistent enough to suggest that by eliminating corruption, a country will be wealthy.

We also had our final theory, economic inequality, for which is prevalent in each of these countries in our analysis. However, what we found is that the theory of economic inequality does a poor job of explaining why these nations are wealthy. It of course shows the difference between each of the countries, like in the United States with how we explained that top executives in the technology industry had collaborated together by not recruiting one another’s employees in order to artificially keep wages down. The problem in China, for which public officials are allowed to purchase statecontrolled assets, like land, mines and businesses at prices significantly below actual market value that a private citizen would be forced to pay. To then, in turn sell these assets off at a mark-up, resulting in a pretty penny for the public officials involved. This is almost another added perk to the job for these public officials and nothing has been done yet to prohibit these unfair competitive acts. Then moving to Japan, however much better, they are in fact still dealing with wide spread bidrigging and public officials being bribed, of course not to the level of the United States or China, but still significant enough to be considered a big problem. Also even though Germany and Japan are scored lower (lower

is better) on the amounts of corruption they have, the theory of economic inequality does a poor job of explaining why the United States and China are producing significantly higher levels of nominal gross domestic production each year. It is good that Japan and Germany have low levels of economic inequality, with Germany being scored near Nordic countries, which currently have the best score of very low economic inequality. Due to the information we have gathered and broken down, we must say for this paper, the most consistent theory of them all is the idea of enforcement via independent agencies.

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NDRC strengthens drug price monitoring Pharmaceutical companies are likely targets of

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future antitrust enforcement. Retrieved February 1, 2018, from https://www.chinalawinsight.com/2015/07/articles/ antitrust-international-trade/ndrc-strengthens-drugprice-monitoring-pharmaceutical-companies-arelikely-targets-of-future-antitrust-enforcement/ Merger. (n.d.). Retrieved January 20, 2018, from http://legaldictionary.thefreedictionary.com/Merger Monopoly and Inequality. (n.d.). Retrieved February 1, 2018, from https://www.newamerica.org/openmarkets/understanding-monopoly/monopoly-andinequality/ Mundt, A. (2017, August 14). Germany: The Federal Cartel Office. Retrieved January 30, 2018, from https://globalcompetitionreview.com/benchmarking /the-european-middle-eastern-and-african-antitrustreview-2018/1145590/germany-the-federal-carteloffice Nakajima, H. (october 1st, 2014). Prevention of bid rigging in public procurement in Japan. 6-6.

Retrieved January 27, 2018, from http://www.ftc.gov.tw/icncartel2014/pdf/2014.10.0 1.%20Plenary%20I%20%20%20Hideo_Nakajima_ Slides.pdf Navigation and service. (n.d.). Retrieved January 20, 2018, from http://www.bundeskartellamt.de/EN/AboutUs/about us_node.html O. (n.d.). OECD Economic Surveys: Germany 2006.

Retrieved February 8, 2018, from https://books.google.com/books?id=063VAgAAQB AJ&pg=PA123&lpg=PA123&dq=has the German Federal Cartel Office been effective&source=bl&ots=cdhrC6RhbJ&sig=8QW ZTaKzz3sH2cEnkpZmVDoJSHU&hl=en&sa=X&v ed=0ahUKEwi63OPysLbZAhUNy2MKHWvaB28 Q6AEIYTAJ#v=onepage&q&f=false OECD Income Distribution Database (IDD): Gini, poverty, income, Methods and Concepts. (n.d.).

Retrieved February 1, 2018, from http://www.oecd.org/social/income-distributiondatabase.htm

Ohlhausen, & Delrahim. (2016). Hart-scott-rodino annual report Fiscal Year 2016. Thirty-Ninth Annual Report,2-2. Retrieved January 31, 2018, from https://www.ftc.gov/system/files/documents/reports /federal-trade-commission-bureau-competitiondepartment-justice-antitrust-division-hart-scottrodino/p110014_fy_2016_hsr_report_final_october _2017.pdf Onishi, K. (2008). Can the New Antimonopoly act change the japanese business community? ASIA Pacific Economic Papers,3-3. Retrieved February 5, 2018, from https://crawford.anu.edu.au/pdf/pep/pep-373.pdf ONPOINT / A legal update from Dechert. (2014, October). Retrieved February 1, 2018, from https://info.dechert.com/10/3783/october2014/combatting-unfair-competition--theconvergence-of-china-s-anti-trust-and-anti-graftenforcement-activities(1).asp?forward=4ffa7e0d5261-4b16-845b-8a2928080ad8 Owen, B., Sun, S., & Zheng, W. (2008). CHINA'S COMPETITION POLICY REFORMS: THE ANTI-MONOPOLY LAW AND BEYOND. Antitrust Law Journal, 75(1), 231-265.

Retrieved from http://www.jstor.org/stable/27897577 Pei, M. (n.d.). China's income gap solution: Too little, too late? Retrieved February 1, 2018, from http://fortune.com/2013/02/15/chinas-income-gapsolution-too-little-too-late/ Qualcomm and China's National Development and Reform Commission Reach Resolution. (2015, February 11). Retrieved February 1, 2018, from https://asiafreshnews.wordpress.com/2015/02/11/qu alcomm-and-chinas-national-development-andreform-commission-reach-resolution/ RIESENKAMPFF, A. (1981). The 1980 Amendment and Other Recent Developments in German Antitrust Law. The International Lawyer, 15(4), 615-628. Retrieved from http://www.jstor.org/stable/40705362

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ROLL, D. (1976). Dual Enforcement of the Antitrust Laws by the Department of Justice and the FTC: The Liaison Procedure. The Business Lawyer, 31(4), 2075-2085. Retrieved from http://www.jstor.org/stable/40685611 Schechter, A. (2016, July 27). Is More Antitrust the Answer to Rising Wealth Inequality? -. Retrieved January 27, 2018, from https://promarket.org/antitrust-answer-risingwealth-inequality/ Schneider, J. (January 2010). Administrative Monopoly and China 's New AntiMonopoly Law: Lessons from Europe 's State Aid Doctrine. Washington University Law Review,87(4), 817-817. Retrieved January 30, 2018, from https://openscholarship.wustl.edu/cgi/viewcontent.c gi?referer=https://www.bing.com/&httpsredir=1&ar ticle=1098&context=law_lawreview Selin, J. L. (2015, January 29). What Makes an Agency Independent? Retrieved January 20, 2018, from http://onlinelibrary.wiley.com/doi/10.1111/ajps.121 61/full Shaffer, L., & CNBC.com, W. F. (2014, August 17).

This is what China's antitrust drive is really about.

Retrieved January 28, 2018, from https://www.cnbc.com/2014/08/15/this-is-whatchinas-antitrust-drive-is-really-about.html Shanahan, D. (2005). The Development of Antitrust in China, Korea and Japan . International Competition Law: Real World Issues and Strategies for Success.

Retrieved January 21, 2018, from https://www.ftc.gov/system/files/attachments/keyspeeches-presentations/shanahanmontreal.pdf Slaughter, & May. (2017). Competition Law in China. Competition Law in China. doi:10.18411/a2017-023 Thiemann, A. (January 16th, 2014). FIGHTING CORRUPTION AND PROMOTING COMPETITION . Global Forum on Competition,44. Retrieved January 31, 2018, from https://www.ftc.gov/system/files/attachments/us-

submissions-oecd-other-international-competitionfora/gfc_corruption_us_oecd.pdf Thépot, F. (January 2nd, 2015). CPI Antitrust Chronicle June 2015 (2). Antitrust v. AntiCorruption Policy Approaches to Compliance: Why Such A Gap? ,5-5. Retrieved January 23, 2018, from https://www.competitionpolicyinternational.com/as sets/Uploads/ThepotJUN-152.pdf Uesugi, A. (2014). Shaping our food – an overview of crop and livestock breeding. Edited by A. Lehrman.

Swedish University of Agricultural Sciences (SLU), Uppsala, Sweden. Published in 2014, pp. 176.

ISBN 978-91-637-5757-0 Available at http://tr.anpdm.com/track?t=c&mid=11856281&uid =603295709&&&http%3A%2F%2Fwww.slu.se%2 Fshapingourfood%2Fen. Animal Genetic Resources/Ressources génétiques animales/Recursos genéticos animales,55, 143. doi:10.1017/s2078633614000435 VandePol, M. (2017, November 21). China; New AntiUnfair Competition Law increases risk of bribery.

Retrieved February 3, 2018, from https://globalcompliancenews.com/china-antiunfair-competition-bribery-20171121/ Wagner-von Papp, F. (2010). Criminal antitrust law enforcement in Germany: ‘The whole point is lost if you keep it a secret! Why didn’t you tell the world, eh?,6-6. Retrieved January 27, 2018, from https://poseidon01.ssrn.com/delivery.php?ID=1730 22101119065100075082021115126064057072038 03507502808807511910100412400600502511112 41221270280180420260751150980220310010960 60013004075058098115082081074123030014065 07708712609308100211012200202603007108400 3092089104082094000115010085094027125069& EXT=pdf What is Economic Inequality? (n.d.). Retrieved January 27, 2018, from https://www.financialdictionary.info/terms/economic-inequality /

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Wingfield, P. M. (2016, January 05). Microsoft Faces New Scrutiny in China. Retrieved February 1, 2018, from https://www.nytimes.com/2016/01/06/business/inte rnational/microsoft-china-antitrust-inquiry.html Wombolt, K., Hunt, R., & Phillips, A. (2018, January 12). Anti-Corruption and Bribery in China.

Retrieved January 23, 2018, from https://www.lexology.com/library/detail.aspx?g=76 0a5dc1-33db-4d92-91de-c475eb4110d a Yoshida, R. (2007, July 3). How Japanese tax-payers' money is lost in bid-rigging. Retrieved February 03, 2018, from https://www.japantimes.co.jp/news/2007/07/03/refe rence/how-japanese-tax-payers-money-is-lost-inbid-rigging/#.WouGV6inGM8 Yoshida, D., Park, J., L., & W. (2018). Japan. Bribery & Corruption 2018,1-1. Retrieved February 7, 2018, from https://www.lw.com/thoughtLeadership/gli-briberycorruption-5th-ed-japan

Thomas Anthony Genova

Thomas Genova will be graduating in June of 2018 with a BA in Political Science. He plans to take a year off from school to pursue an internship in the political field and also prepare for the GRE. Email: tagenova@cpp.edu

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Laura Yeghiazaryan

COMPARATIVE POLITICS Section B

Which of the three main ethnic conflict theories best explains the Ethnic violence in the post-soviet states of Azerbaijan, Georgia, and Moldova?

Laura Yeghiazaryan *

Abstract After a wave of ethnic conflicts spread across the world at the end of the Cold War, scholars, fearful that these ethnic conflicts were a serious threat to regional and global peace, began developing numerous theoretical explanations for the causes of such violence in hopes of preventing similar occurrences from happening in the future. Today, these explanations fall under three main theoretical approaches: primordialism, instrumentalism, and constructivism. The literature concerning ethnic violence, however, reveals that there is no clear consensus amongst scholars regarding which of these theories best explains the causes of ethnic conflicts. Therefore, this thesis, which uses a process tracing approach to test the three main theories of ethnic conflicts in the post-Soviet states of Azerbaijan, Georgia, and Moldova, argues that utilizing an approach which uses ideas from both the instrumentalism and the constructivism theories is the best way of explaining the causes of ethnic conflicts. This is the case because the primordialist theory has the least amount of explanatory power; and the instrumentalism and constructivism theories, separately, are incomplete. © 2018 California State Polytechnic University, Pomona. All rights reserved Keywords: Primordialism; instrumentalism; constructivism; ethnic violence; Azerbaijan; Georgia; Moldova

——— * Created by Laura Yeghiazaryan, Department of Political Science, California State Polytechnic University, Pomona for her senior thesis project.

Correspondence concerning this research paper should be addressed to Laura Yeghiazaryan, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: lauray@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 46–64. © 2018, Political Science Department, California State Polytechnic University, Pomona

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1. Introduction It was once believed that in the face of capitalism and scientific socialism, ethnic identities would wither away. However, the reconstruction of societies’ dominant social norms, economies, and political structures did not make ethnic identities obsolete (Comaroff and Stern 36). On the contrary, not only did ethnic identities continue to dominate people’s social and political lives, but a wave of conflicts between different ethnic groups spread across the world at the end of the Cold War (Lake and Rothchild 41). Thus, scholars, fearful that ethnic conflicts were a serious threat to regional and global peace due to their propensity of negatively impacting the world economy and opening the floodgates to asylum seekers, began developing theoretical explanations for the causes of such violence in hopes of preventing similar occurrences from happening in the future (Lake and Rothchild 43). Today, these explanations fall under three main theoretical approaches: primordialism, constructivism, and instrumentalism.

The first theory, primordialism, argues that ethnic conflicts are a natural phenomenon, which occur as a result of cultural differences. The second theory, constructivism, claims that ethnicities are not inherently conflictual; and that ethnic violence takes place when political systems and cultural scripts allow for such violence to take place. The third theory, instrumentalism, suggests that ethnic conflicts are caused by either ethnic entrepreneurs who mobilize the members of their ethnic group in order to achieve their own personal goals, or they arise as a result of different groups mobilizing their ethnic identities in order to realize their conflicting interests. Having said that, given that all of these theories have shortcomings and given that the literature on ethnic violence reveals that there is no clear consensus amongst scholars regarding which of these theories has the best explanatory power,

the purpose of the following literature review is to examine and to explain these theories in a more comprehensive manner in order to, later, use the concepts from these theories to decide which of these approaches best explains the causes of ethnic conflicts in the three post-Soviet states of Azerbaijan, Georgia, and Moldova.

2. Literature Review 2.1 Primordialism According to primordialism, ethnic identities are derived from nature (they were either biologically determined in the past or they were constructed by individuals in the distant past) and have been passed down to the current generations of people from their ancestors. Either way, every individual belongs to one ethnic group, which, once acquired, remains fixed over time (“Cumulative Findings in the Study of Ethnic Politics” 7). Moreover, members of an ethnic group have a group consciousness which develops from their language, culture, traditions and history; and this group consciousness is reinforced over time through myths and symbols, which are passed down from the older generations. For example, even though nomadic tribes from the Middle East, such as the Kurds, have untraceable kinship relations, their ethnic identity has survived for centuries as a result of their culture being continuously passed down from one generation to the next (Jesse and Williams 10).

The primordialist theory can be traced back to arguments made by historical intellectuals. For instance, in the past, German primordialist philosophers believed that ethnicities remained the same over time given that an ethnic group’s unique

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identities and circumstances in life were embedded in their spoken language. In other words, these primordialist thinkers believed that once people dispersed geographically and established different tribes and nations, these groups developed different languages which reflected their unique situations in life (Dawisha 17). Thus, as the ethnic group’s language was passed down from generation to generation, the group’s ethnic spirit was also passed down to the newer generations.

Primordialists also believe that ethnic conflicts are a natural phenomenon which arise as a result of cultural differences. In other words, given that an ethnicity is a relational concept, which means that having an ingroup also means having an out-group, it is natural for two different ethnic groups to fight with one another in order to achieve their conflicting goals (Jesse and Williams 10). Moreover, primordialists also claim that ethnic conflicts are a result of “memories of past atrocities” which make violence “hard to avoid” (Sambanis 263).

2.2 Arguments Against the Primordialist Theory There are also some scholars who believe that primordialist ideas are too simplistic to explain ethnic conflicts; and thus, should be disregarded. That being said, in order to support these claims, scholars bring to attention the many weaknesses of this theoretical explanation. First, they argue that this theory cannot explain the variations in the levels of conflict between two ethnic groups over time and place. For example, primordialism doesn’t explain why there were no conflicts between the French and the English until the year 1066, and it doesn’t explain why the French and the English became allies after intermittently fighting one another for centuries (Leadbetter 4). Second, they highlight the fact that there are some people who choose to assimilate into other ethnic groups. For example, sometimes, when people move to another country, they choose to disregard their old cultural practices and instead, choose to adopt the beliefs and

rituals of the new group that they belong to (Andersen 240). Third, they note that there are some ethnic groups which have disappeared or have changed over time (Jesse and Williams 11). For example, antiprimordialists note that the ethnic labels “Tutsi” and “Hutu,” which are used to identify two “different” ethnic groups in Rwanda, were invented by the Belgians when they colonized the territory. In other words, these ethnic identifications did not exist in Rwanda prior to the Belgians moving into the region.

Instead, these labels are a result of a myth that the Belgians invented about the people living in the territory in order to create a polarized society, which would make it easier to conquer and control them.

According to this myth, the “Tutsis,” who are a little bit taller, lighter skinned, and have longer faces, are a lost tribe from Egypt, which supposedly makes them higher up in the racial hierarchy than the “Hutus.” This is not true, of course. One cannot actually identify people as “Hutus” or “Tutsis” simply by looking at them. That being said, despite the fact that there are no actual differences between “Hutus” and “Tutsis,” the Rwandan people have come to believe the Belgians’ story and have been using these ethnic divisions ever since that time period (Fearon and Laitin 858).

2.3 Constructivism The constructivism theory, which can be traced back to historical arguments made by French and English philosophers, states that ethnic identities are constructed, reconstructed, and mobilized in accordance with social and political factors. For instance, the English language is a result of the linguistic influences of the various groups of people (the Celts, the Danes, the Romans) who invaded and settled down in the country (Dawisha 10). In other words, according to constructivism, the primordialist approach of understanding a group’s attributes as natural characteristics which emerge from physiological traits and psychological predispositions, is incorrect. Moreover, constructivists argue that it is wrong to assume that an ethnic group’s members have an internalized “singular social experience” that

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everyone in the group is exposed to through their group consciousness (Cerulo 387). Instead, they suggests that ethnic groups are a social construction, which means that they are fabricated and refabricated based on reigning cultural norms. For example, in 1992, 31% of the population living in Britain considered themselves to be English; however, less than a decade later, this number increased to 41% of the population even though there were no exceptional rates of fertility or migration in the area (“Constructivist Theories of Ethnic Politics” 4). To put this another way, the increase in the number of English people in Britain was due to the fact that the number of people who identified themselves as English increased.

Constructivists also argue that individuals do not belong to only one ethnic category. Chandra, for example, maintains that when analyzing a single ethnic group, one notices that this supposed single ethnic group is actually a mixture of several other cultural identities. In other words, ethnic groups are made up of several different identities that are unified under one salient category (“Why Ethnic Parties Succeed” 4).

Moreover, Cerulo supports this claim by brining to attention the idea that there are individuals who have mixed ancestries; and thus, they can choose which ethnic identity they want to stress based on the circumstances that they find themselves in (Cerulo 389).

Furthermore, according to this theory, ethnicities are not inherently conflictual. In fact, most ethnic groups accomplish their goals in a peaceful manner through established political channels (Lake and Rotchild 43). That being said, constructivists argue that it is possible to use the concept called the security dilemma to predict the probability of a conflict amongst different ethnic groups. First, ethnic conflicts are likely to happen when political regimes collapse because they often leave behind a number of noncohesive cultural groups who are forced to compete with one another in order to gain a sense of security (Ellingsen 235). Second, ethnic conflicts can arise due to competitive elections that utilize ethnic-based political parties. This is the case because the minority

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ethnic group could perceive the election results as a threat to their group’s identity (Constructivist Theories of Ethnic Politics 37-38). Third, ethnic conflicts can take place during times of modernization if an ethnic group’s expectations are not met and if an ethnic group believes that they are at a disadvantage relative to another ethnic group (Ellingsen 230).

2.4 Arguments Against the Constructivist Theory There are scholars who believed that the constructivist theory has several flaws. First, the constructivist theory cannot explain how some ethnic groups are able to remain the same for very long periods of time, even during times of changing political and social contexts (Jesse and Williams 12). Second, the constructivists fail to recognize that mass literacy hardens people’s ethnic identities, which makes it very unlikely that the ethnic group can be reconstructed (Van Evera 20). Third, scholars argue that the constructivist approach does not reveal why some ethnic identities persist even though they harm the members of the group instead of benefiting them (Jesse and Williams 12).

2.5 Instrumentalism According to instrumentalism, ethnicity is a tool used by people to achieve their goals because people who share ascriptive characteristics can be effectively organized and mobilized in order to influence public policies. In other words, individuals who believe that they can obtain access to valuable resources or state services by electing a fellow ethnic member to a political position, are likely to do so to achieve their goals (“Why Ethnic Parties Succeed” 6). This is the case because members of an ethnic group feel that they have common goals in life. Moreover, given that human beings are believed to be rational actors who pursue their objectives in a manner which maximizes their chances of achieving their goals, it is not

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surprising that people are using their ethnic identity very much like an interest group (“Why Ethnic Parties Succeed” 11).

Instrumentalists also argue that given that members of an ethnic group (people who share a common history, language, and customs) feel a strong cohesion to other members of their in-group, ethnic activists and political entrepreneurs can mobilize their own ethnic groups to commit violence by convincing them that they are under a threat from another ethnic group (Comaroff and Stern 39). They can do this by magnifying the differences between their ethnic group and the people from the out-group; and they can do this by blaming the other ethnic group for their misfortunes.

To explain this phenomenon, Horowitz argues that a lot of the tension between ethnic groups comes from people evaluating their abilities and their situations in life relative to the lives and the abilities of people who have other ethnic ties (Horowitz 143-144). In other words, if one group of people believe that the people from another ethnic group are better off than them, then they might perceive the other group to be a threat to their own group’s identity, which can sometimes be enough to get a group to resort to violence.

2.6 Arguments Against the Instrumentalist Theory Scholars criticizing the instrumentalist approach of explaining ethnic conflicts state that the instrumentalist theory is incomplete given that it does not consider the feasibility of an ethnic conflict actually taking place.

Even where extreme ideas and conditions exist, ethnic conflicts only break out when one of the ethnic groups has the opportunity to use violence against the other group. In other words, scholars argue that an ethnic conflict is unlikely to naturally evolve from a political protest. This is the case because rebel groups face collective action problems and because rebellions are very expensive. For example, the Tamil Tigers, an ethnic group which makes up about 12 percent of Sri Lanka’s population, spend between $200 million and $350 million per year in order to maintain their control over the Northeast part of Sri Lanka for which they

seek to obtain a political secession (Collier et al. 5).

Moreover, since typical civil wars between ethnic groups last for many years, result in large numbers of deaths, and rarely result in rebel victories, rebellions are unlikely to be rational decisions (Collier et al. 6).

Thus, members of an ethnic group should be opposed to starting an ethnic conflict once they consider the amount of time, money, and risk that is involved in the conflict. In other words, members of an ethnic group should not be likely to be manipulated by an ethnic elite who seeks to start a conflict to benefit himself or herself. After all, the rebellion is far more likely to have devastating results rather than to establish justice (Lake and Rothchild 46).

2.7 A Combination of Constructivist and Primordialist Ideas There are multiple scholars who believe that in order to fully understand the causes of ethnic conflicts, one needs to utilize ideas from both the constructivist and the primordialist theories. For example, Van Evera agrees with the constructivist idea that ethnic identities are socially constructed; however, he argues that this does not mean that scholars need to disregard the claim that ethnic identities are fixed. This is the case because even though ethnic identities are constructed at some point in time, once these identities have been formed it is incredibly hard to reconstruct them (Van Evera 20).

For instance, the communist elites failed to construct a new national identity for the many ethnic groups that were joined together under the Soviet Union (Dawisha 4).

Scholars also argue that although the identities of non-literate people can be changed with relative ease, the identities of those people who have the ability to read are likely to be fixed. To explain this phenomenon, Van Evera argues that given that most of today’s ethnic groups have written records of their group’s history, the members of these groups should have a uniform understanding of where they come from and what their identity means. Moreover, given

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that this information is written, the accounts of the group’s history can be passed along to coming generations without going through a lot of changes. To support this claim, Van Evera brings to attention the fact that illiterate Eurasian identities such as the Hittites, Sumerians, Babylonians, Phoenicians, Amorites, and Edomites no longer exist; however, there are no examples of mass-literate Eurasian identities that have disappeared (Van Evera 20). That being said, it is important to note that this is the case because having a uniform understanding of what it means to be a part of a specific ethnic group helps to strengthen the loyalty that the members of the ethnic group feel towards one another, which, in turn, makes sure that the link between these people cannot be easily broken. After all, a member of a group that has a uniform ethnic identity is likely to feel more connected to the rest of the members of his or her group, even to those who are strangers, because they all have a common understanding of who they are (Jesse and Williams 12).

2.8 A Combination of Instrumentalist and Constructivist Ideas There are some scholars who believe that in order to fully understand the causes of ethnic conflicts, one needs to utilize concepts from both the constructivist and the instrumentalist approaches. In order to support this claim, Posner provides an analysis of the relationship between the Chewas and the Tumbukas who live in Zambia and Malawi. The study of these two groups of people is a valuable one because although, according to the primordialist theory, the Chewas and the Tumbukas should have similar relationships with one another in both Zambia and Malawi, this is not the case in reality. For example, in Malawi the interactions between the members of these two groups are often antagonistic because the two groups tend to see each other as political opponents. On the other hand, in Zambia, the two ethnic groups consider themselves to be political allies because they view one another as one and the same (Posner 5). To explain this phenomenon,

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Posner argues that the relationship between the Chewas and the Tumbukas differs in these two countries as a result of their differing population sizes. In Zambia, the populations of Chewas and Tumbukas are both small compared to the political arena; and thus, given that these groups, separately, are not considered to be useful bases for political mobilization, they do not see each other as political enemies. However, in Malawi, since the Tumbukas and the Chewas are both large groups, which are considered to be valuable bases for political coalition building, these groups see each other as one another’s competition (Posner 22). In other words, given that the ethnic groups (on both sides of the border) seek jobs, hospitals, roads, licenses and many other resources which can be available to them if they have a say in the government, these people are focused on building effective political coalitions in order to win the majority of the seats in the state legislature (Posner 21). Therefore, in order to increase their chances of winning political offices, the Chewas and the Tumbukas in Malawi reshaped their ethnic groups’ identities and created divisions between their two groups in order to use their ethnic groups as effective tools for political mobilization.

2.9 A Combination of Primordialist, Instrumentalist, and Constructivist Ideas Some of the literature on the causes of ethnic conflicts suggests combing primordialist, instrumentalist, and constructivist ideas together in order to create a more comprehensive approach for understanding cultural identities. This is the case because the study of ethnic conflicts involves the analyzation of the processes by which ethnic elites select aspects of their group’s culture and history, reconstruct them by attaching new value or meaning to them, and then use these symbols and myths in order to mobilize the group to achieve their goals or to defend their interests (Dawisha 6). In fact, Conversi suggests that throughout history, historians have been studying their ethnic group’s culture and history and then refabricating their past or magnifying certain preexisting myths and events in a way to provide their

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ethnic political leaders historic justification for competing with other groups (Conversi 74). This process involves putting a lot of attention on the ethnic group’s heroisms, supposedly incomparable achievements, and the obstacles that they have confronted and prevailed against (Dawisha 17). That being said, this method of instilling a strong ethnic identity in the hearts and minds of the members of the ethnic group also involves conveniently forgetting the unbecoming events such as civil wars, massacres, and human rights violations that the ethnic group has been a part of (Dawisha 6). For example, Turkish history books do not include any information about the Armenian genocide even though 1.5 million Armenians were killed at the time (Conversi 74).

3. Methodology In view of the fact that there is no clear consensus amongst scholars regarding which of the three main theories of ethnic conflicts (primordialism, instrumentalism, and constructivism) best explains the causes of such violence, the purpose of this thesis is to test these theories in order to determine the theoretical approach that has the best explanatory power.

That being said, given that a wave of ethnic conflicts spread across the world at the end of the Cold War and given that the Cold war was marked by the dissolution of the Soviet Union, this thesis uses a process tracing approach to analyze the chain of events which resulted in ethnic conflicts in three post-Soviet states: Azerbaijan, Georgia and Moldova. These three former Soviet Socialist Republics serve as the case studies for this thesis because they share many similar characteristics. For example, all three of these states are geographically close to one another and all three of them have had ethnic conflicts, which have resulted in de-facto states. Having said that, the purpose of choosing such similar cases is to see whether the ethnic conflicts in these states came about due to similar processes or whether they reached the same destination through a different chain of events.

To test the primordialist theory, this thesis looks at the history of the disputed territory in order to see the length of time that the warring ethnic groups have been residing in that location; it examines the length of time the ethnic groups have been in conflict with one another; and it analyzes the justifications given by ethnic leaders in order to explain the reasons for engaging in the conflict.

To test the constructivist theory, this thesis looks at international agreements that political leaders signed or agreed to near the time of the conflict; it examines the policies that the states adopted around the time that the conflicts arose; and it considers whether key historical events, which took place prior to the start of the conflict, resulted in changes in societal norms that could have led to the conflict.

To test the instrumentalist theory, the thesis analyzes ethnic leaders’ behaviors in order to see whether these ethnic entrepreneurs made the members of their in-groups feel threatened by the out-groups in order to achieve their personal interests; it looks at the states’ political parties in order to see whether the parties were based on ethnicities or if they were based on other commonalities and interest; and it evaluates election results in order to consider whether both of the ethnic groups involved in the conflict had the means to affect the politics in their state.

4. Case Study 1: Azerbaijan 4.1 Testing Primordialism The ethnic conflict in Azerbaijan is a conflict over the region of Nagorno-Karabkah, a de-facto state under the control of ethnic Armenians, which is internationally recognized as a territory of Azerbaijan.

That being said, the ownership of this mountainous territory is currently under debate between Azerbaijanis and Armenians because both of these groups claim that Nagorno-Karabakh is the birthplace of their group’s culture, language, and religion (Kuburas 46).

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The Armenian historians insist that while the Caucasus were traded by international powers, Nagorno-Karabakh has always remained a commune of Armenian culture. To support this claim, they bring to attention several facts. First, according to the writings of Strabo, a Greek geographer, historian, and philosopher who was born in 64 BC and died in 24 AD, the Armenians’ control over the territory of NagornoKarabakh can be traced back to 189 BC (“History, Geography, and Ethnology” 2). Second, in 2005, archaeologists found the remains of the ancient Armenian city of Tigranakert, which dates back to the 1st century BC, in the Askeran region of NagornoKarabakh (Petrosyan 1). Third, the first Armenian school, which taught students how to read and write using the Armenian alphabet, was opened in the Martuni District of Nagorno-Karabakh during the 5th century AD (Kuburas 46). Fourth, the remains of St. Grigoris (an Armenian bishop) is buried inside a mausoleum located underneath the Amaras Monastery, which is the oldest monument in Nagorno-Karabakh (“Diocese of Artsakh” 2).

The Azerbaijani historians, on the other hand, also insist that they can identify their ancestors’ clans and tribes in this region. For example, the Azerbaijanis argue that they can trace their predecessors, the Caucasian Albanians, to the territory of NagornoKarabakh as far back as the 4th century BC (“History, Geography, and Ethnology” 3). Moreover, they emphasize that although this territory was repeatedly traded by international powers, it was under the control of Azerbaijani ancestors during the 1st century AD, the 9th and 10th centuries, and the beginning of the 11th century (Potier 1).

Despite the current debate regarding the ownership of this territory, however, the two ethnic groups in this territory have lived in relative peace with one another for centuries. In fact, the serious conflicts between the ethnic Armenians and the ethnic Azerbaijani’s ancestors, the Caucasian Tatars, only began in the 20th century. The first round of violent clashes between the two groups, which occurred in Baku, Nakhichevan, Shusha, and Elizavetopol, took place during the

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Russian Revolution of 1905 (Hakobyan 2).

Nevertheless, after this incidence was over, the two ethnic groups resumed their peaceful coexistence until the year 1988 (Romashov 11). Thus, given that there were long periods of relative peace and stability between these two ethnic groups, the primordialist notion that ethnic conflicts arise naturally as a result of ancient hatreds does not accurately explain the conflict between the ethnic Armenians and the ethnic Azerbaijanis (Jesse 11).

Notwithstanding the fact that the primordialism theory is fundamentally flawed, primordialist ideas are often used by ethnic activists as a means of explaining and justifying the conflict between the ethnic Armenians and the ethnic Azerbaijanis in NagornoKarabakh. For example, Allahshukur Pashazade, the Grand Mufti of the Caucasus, has incorrectly claimed that the conflict between the two ethnic groups in Nagorno-Karabakh is a result of the ethnic Armenians’ deceitful nature. In fact, he has insisted that Azerbaijan has done all that is possible in order to resolve the conflict between the two ethnic groups in NagornoKarabakh; however, the Armenians’ dishonest and disloyal nature has always hindered the peace process between the two groups (Elibegova 22).

4.2 Testing Constructivism When Armenia became a part of the Soviet Union, the Bolsheviks promised the Armenians that the Nagorno-Karabakh territory would be considered a territory of the Armenian Soviet Socialist Republic. In fact, on 4 July 1921, the Communist Party in the Caucuses decided, by majority vote, to transfer Karabakh to the Republic of Armenia. On the next day, however, Stalin ordered the Bureau to revoke its majority vote verdict and to declare that NagornoKarabakh would be an autonomous enclave of Azerbaijan. This was the case because Stalin wanted to use a “divide and rule” policy in order to maintain his control over both the Armenian and the Azerbaijani Soviet Socialist Republics. In other words, by refusing to allow the transfer of Karabkah to Armenia, Stalin

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could use this territory, which was largely populated by Armenians, as leverage over the people living in the Armenian Soviet Socialist Republic in order to force them to cooperate with the Soviet leadership; and he could also use the Nagorno-Karabakh territory as a fifth column in case of disloyalty from the Azerbaijanis (“Sovietization of Caucuses” 3-4). That being said, while Stalin’s “divide and rule” policy helped him to maintain his control over both the Armenian and Azerbaijani Republics, this policy had severe consequences for the two ethnic groups living in the Nagorno-Karabakh region. As a matter of fact, the policy created ethnic tensions between the Armenians and the Azerbaijanis who were living in the territory of the Azerbaijan Soviet Socialist Republic.

As a result of Nagorno-Karabakh being considered a part of Azerbaijan’s territory, the ethnic Armenians, who had recently experienced a systematic extermination by the Ottoman Empire, became fearful of their Azerbaijani neighbors and began doing everything in their power to ensure their safety. In other words, worried that the Azerbaijanis, who had legal rights to the Armenian-dominated NagornoKarabakh, would decide to cleanse them from their homes, the Armenians in the region began mobilizing under a nationalist sentiment (Kuburas 47).

The Azerbaijanis (who were known as Caucasian Turks, Tatars, or Muslims prior to the Russian Revolution of 1905), on the other hand, developed a strong national “Azerbaijani” identity under the Soviet rule and began putting a lot of emphasis on ensuring the territorial integrity of the new Azerbaijan republic.

Thus, since Nagorno-Karabakh was legally considered to be a part of Azerbaijan’s territory, the Azerbaijanis were adamant about making sure that the territory, which was dominated by ethnic Armenians, remained a part of Azerbaijan (Kuburas 49).

That being said, the rise of tensions between the ethnic Armenians and the ethnic Azerbaijanis, who used to be realitively peaceful with one another, is a result of the events and agreements which took place during this time. In other words, Stalin’s “divide and rule” policy, the Armenian Genocide, and the new

“Azerbaijani” identity under the Soviet rule changed the region’s social and political norms and created an environment where ethnic conflicts could take place.

Thus, it is clear that the constructivist theory correctly explains some of the factors which caused the ethnic violence between the Armenians and the Azerbaijanis.

4.3 Testing Instrumentalism When Mikhail Gorbachev became the new leader of the Union of Soviet Socialist Republics in 1985 and introduced the policy of glasnost, he allowed the region’s simmering ethnic tensions to be openly expressed. This, in turn, eventually, resulted in the violent clashes between the ethnic Armenians and the ethnic Azerbaijanis living in the Azerbaijan Soviet Socialist Republic.

Gorbachev’s glasnost policy gave the oppressed ethnic Armenians living in the territory of Azerbaijan the ability to mobilize as a unit in hopes of achieving their common ethnic needs (Kuburas 50). In other words, this policy allowed the ethnic Armenians of the Nagorno-Karabakh region to express their dissatisfaction with the lack of health clinics, the lack of Armenian education programs available to the public, and the general lack of job opportunities for Armenians in Azerbaijan (Kaufman 20). Therefore, when the first murmurs of the glasnost reforms reached the territory of Azerbaijan, a group of ethnic Armenians living in this region quickly joined together in order to demand reforms. To start off, this group, which called itself the Krunk, decided to express their grievances against Azerbaijan by collecting 75,000 signatures from the ethnic Armenians living in the Nagorno-Karabakh territory in order to petition the Politburo for the transfer of this region to the Armenian Soviet Socialist Republic. Next, when a senior Communist Party official in Moscow announced that their petition for transfer had been rejected, the ethnic group once again mobilized to fight for what they perceived to be their rights; however, this time they utilized different methods (Kaufman 21). First, they posted protest placards around Azerbaijan, which

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stated their many grievances. Then, they began organizing daily protest rallies in order to raise awareness of the fact that their needs weren’t being met. Later, when an Azerbaijani party boss in Chardakhlu decided to punish protesters by beating up women, children, and elderly individuals living in his region, the Armenians who believed that this was an Azerbaijani effort to cleanse their ethnic group from the territory, began driving ethnic Azerbaijanis out of the Nagorno-Karabakh region (Kaufman 22). In other words, with the impending Soviet collapse and with the new policy of glasnost, ethnic Armenians were given the means, the motive, and the opportunity to not only make political demands but to also step up their fighting in hopes of achieving their goals.

The impending Soviet collapse and the new policy of glasnost also gave the Azerbaijanis the ability to mobilize as an ethnic group in order to achieve their wants and needs. For example, in November of 1988, ethnic Azerbaijanis began rallying in Baku in order to protest against a reported construction project in the Topkhana area of Nagorno-Karabakh. The project, the building of a highly polluting aluminum workshop, was reportedly being carried out by ethnic Armenians without the approval of Baku, which violated Azerbaijan’s sovereignty (Kaufman 28). Thus, unhappy about the events in Nagorno-Karabakh, the ethnic Azerbaijanis came together and created the Azerbaijani Popular Front (APF) in order to regain sovereignty over the region. At first, the APF led large rallies in order to protest the construction project.

Later, however, the group became increasingly radicalized. In one instance, the group organized a rail blockade of Armenia, which severely hampered Armenia’s ability to recover from a major earthquake.

Moreover, in another instance, massive attacks were carried out against Armenians living in Baku in order to provide homes for Azerbaijani refugees who were expelled from the Nagorno-Karabakh region. These attacks resulted in hundreds of thousands of Armenian refugees fleeing from Baku (Kaufman 29).

That being said, the ethnic conflict between the Armenians and the Azerbaijanis in the territory of

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Nagorno-Karabakh was also exacerbated by ethnic elites. For example, the current Azerbaijani president, Ilham Aliyev has repeatedly mobilized his ethnic group against Armenians in order to achieve his political goals. For example, Aliyev has been encouraging and fostering hostilities against Armenians by both continuously referring to all Armenians as Azerbaijan’s enemies and by rewarding atrocious crimes that were committed against Armenians. In 2012, for example, Aliyev convinced the government of Hungary to transfer Ramil Safarov, a convicted murderer responsible for the death of a sleeping Armenian lieutenant, to Azerbaijan with the promise that he would complete the rest of his prison sentence in his home country. When Safarov, arrived back to Azerbaijan, however, he was given a hero’s welcome.

Not only did the president pardon Safarov for his atrocious crime, but he also promoted the man’s rank in the army, gave him a free apartment, and payed him money for the eight years that he spent inside of a prison in Hungary (“Azeri Killer” 7). Furthermore, Aliyev has also used the conflict between the two ethnic groups as a diversionary tactic. Amid the growing public unrest in Azerbaijan because of the falling oil prices, the president, who spent $4 billion to buy new, modern Russian weapons, felt a growing pressure to demonstrate that he had something to show for his expensive investment (MacFarquhar 17). Thus, it is believed that Aliyev, hoping to demonstrate Azerbaijan’s newfound military superiority, ordered an offensive military attack against the Armenian forces in Nagorno-Karabakh. This attack also served as a reminder to the Azerbaijanis that their president had not given up on Azerbaijan’s claim to the separatist region (“A Frozen Conflict” 5). In fact, during a recent speech, Aliyev was quoted saying that in order for the conflict between the Armenians and the Azerbaijanis to come to an end, Azerbaijan must restore its territorial integrity and Armenia must accept that Nagorno-Karabakh is never going to be granted independence (Nazarli 10).

Therefore, given that the research shows that the ethnic conflict in the Nagorno-Karabakh region arose

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because of both manipulative elites and because the two ethnic groups living in the region had conflicting interests and goals, it is clear that the instrumentalist theory accurately explains the reasons why there was an ethnic conflict between ethnic Armenians and ethnic Azerbaijanis.

5. Case Study 2: Georgia 5.1 Testing Primordialism The ethnic conflict in Georgia is a conflict over the region of South Ossetia, a de-facto state under the control of ethnic Ossetians, which is internationally recognized as a territory of Georgia. That being said, the rightful ownership of the region of the separatist region of South Ossetia has been a subject of debate between Georgians and Ossetians for several hundred years.

The people known as Ossetians, who were previously known as Alans (a group of Persianspeaking tribes), moved into the region of South Ossetian when their homeland Alania was destroyed by the Mongols in the year 1230 (“South Ossetia” 5).

During this time, this territory was a part of the Kingdom of Georgia; however, the Georgians’ political power in this region was weak (“South Ossetia” 8). Thus, the fragmented power in the region allowed the Ossetians the ability to live in relative autonomy (“South Ossetia” 11). That being said, given that a large number of Ossetians have been residing in this territory ever since that time period, they claim to be the rightful owners of the region.

The nation of Georgia, which contained the current South Ossetian territory, can be traced back to the 8th century; however, in the 13th century, the Georgian kingdom was torn apart during an invasion by the Mongols (“Early Kingdoms” 1-2). Later on, this territory was further fragmented as the Georgians fought against Ottoman, Iranian, and Russian domination; however, Georgia was able to obtain its independence from 1918 to 1921 (“Cultural Life” 15).

Nevertheless, this independence did not last very long

given that after three years of independence it was absorbed into the Soviet Union. That being said, after the dissolution of the Soviet Union, Georgia, which again included the territory of South Ossetia, became an independent state (“Cultural Life” 13). Thus, today, Georgians argue that the territory of South Ossetia, which was a part of their territory throughout history, is rightfully theirs.

Despite the current debate regarding the ownership of the territory, however, the two ethnic groups in this territory lived in relative peace with one another for centuries. In fact, the Georgians and the Ossetians were able to coexist peacefully for most of the Soviet period.

During this time, intermarriage between the two ethnic groups was very common and many Ossetian and Georgians lived side by side in harmony (Hays 16).

Therefore, given that these two groups were able to peaceful cohabitate the same land for centuries, the primordialist theory does not accurately explain the conflict between the ethnic Ossetians and the ethnic Georgians.

In spite of the fact that primordialism does not explain the reason why there is a conflict between ethnic Ossetians and ethnic Georgians, flawed primordialist ideas are still used by ethnic activists in order to justify the war between the two groups. For example, when Zviad Gamsakhurdia was elected as Georgia’s president in 1990, he argued the Georgians had to fight against the Ossetians, who had invaded their territory in the past, in order to protect the integrity of their ancestral homeland. Moreover, he claimed that the Ossetians couldn’t demand to have an autonomous state given that the territory that they resided in had been rightfully Georgia’s for centuries (Wolff 1).

5.2 Testing Constructivism The Ossetians and the Georgians lived peacefully with one another until the period after the Russian Revolution. In fact, the first confrontation between these ethnic groups took place during the brief period of time when Georgia had regained its independence

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from Russia in 1918 (“2008 Georgia-Russia Conflict” 1). At this time, as the Georgian government and the South Ossetian People’s Council failed to agree on the exact geographic territory that would be granted autonomy, several Ossetians began leading riots against the Menshevik Georgian government in order to demonstrate their dissatisfaction. That being said, these riots, combined with the fact that the Bolsheviks were trying to seize control of the South Ossetian territory, resulted in Georgia sending soldiers into the Ossetian territory in order to restore order in the region.

Furthermore, the soldiers were also sent into the Ossetian territory in order to punish the Ossetians given that it was believed that they were working with the Bolsheviks in order to reunite Georgia with Russia (Jones 222). Having said that, although in the beginning it appeared as if Georgia was going to successfully suppress the Ossetian population, in 1921, Georgia was invaded by the Red Army, which eventually resulted in Georgia, along with the Ossetian territory, being incorporated into the Soviet Union (Hewitt 6).

When Georgia was absorbed into the Soviet Union, the Ossetians who lived in the current South Ossetian territory did not unite with the large North Ossetian population, who were considered to be a part of the Russian Soviet Socialist Republic. Instead, following Stalin’s “divide and rule” policy, the South Ossetian territory was made into an autonomous oblast within the Georgian Soviet Socialist Republic (“South Ossetia” 11). This decision was meant to be a compromise for both the Ossetians and the Georgians given that the Ossetians were given a considerable amount of autonomy whilst still legally being considered a part of Georgia. Thus, this decision helped to ensure that the Ossetians and the Georgians coexisted in relative peace during most of the years that they were a part of the Soviet Union. Having said that, after the collapse of the Soviet Union, the Ossetians’ requested to be an independent state from Georgia, which resulted in another confrontation be between the ethnic Ossetians and the ethnic Georgians (“2008 Georgia-Russia Conflict” 21).

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Therefore, the constructivist theory accurately explains that the ethnic conflicts between the Ossetians and the Georgians is at least partly a result of key events and agreements in history. In other words, the Russian Revolution, the inability of the Georgian government and the South Ossetian People’s Council to agree on the geographic territory that would be granted autonomy, Stalin’s “divide and rule” policy, the substantial amount of autonomy given to the Ossetians by the Soviet leadership, and the collapse of the Soviet Union changed the social and political norms in the region, which, in turn, resulted in the conflict between the two formerly peaceful ethnic groups.

5.3 Testing Instrumentalism When South Ossetia first became an autonomous oblast of the Georgian Soviet Socialist Republic, the Ossetians, who had been poor and underdeveloped under the Georgian rule, not only experienced development through the construction of a new railway to Gori, but also gained a substantial amount of autonomy, which allowed them to have the Ossetian language as the official language taught at their schools (“South Ossetia” 11). Thus, when in 1989, Mikhail Gorbachev’s perestroika policy was used by the Georgian government to establish the Georgian language as the official language throughout the Republic of Georgia (which included the territory of South Ossetia), and when in 1990, the Georgian government used the perestroika policy to ban regional political parties from participating during national elections, the Ossetians decided to mobilize their ethnic group against the Georgians, whom they considered to be a threat to the Ossetian identity. They did this by boycotting Georgian elections, electing their own government, and declaring their independence from Georgia (“South Ossetia” 13).

As the South Ossetians declared their independence from Georgia, several Georgian elites used the ethnic conflict between the two groups in order to advance their political interests. For example, when

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Shevardnandze, a man who did not consider the recapture of the South Ossetian territory a priority for the Georgian government, was reelected as Georgia’s President, Mikheil Saakashvili, who was a member of the Georgian Parliament, used ethnic outbidding in order to gain political support and in order to become the president of Georgia. He did this by launching a protest against Shevardnandze’s reelection, during which time he argued that there was a falsification of votes which led to Shevardnandze’s reappointment.

Then, after Shevardnanze resigned from office, Saakashvili campaigned for the presidential seat by making it clear that his intention was to reclaim the Georgian territory from the Ossetians (“South Ossetia” 16).

Thus, the instrumentalist theory correctly explains some of the causes of the ethnic conflicts in Georgia given that the real and perceived fears and inequalities of the Ossetians and the Georgians resulted in them using their ethnicity as a political instrument against one another in order to achieve their ethnic interests and needs. That being said, it is important to also note that the elites’ politicization of their ethnic identity in order to achieve their personal political goals was also a factor which contributed to the violence between the ethnic groups.

6. Case Study 3: Moldova 6.1 Testing Primordialism The rightful ownership of the region of Transnistria is a subject of debate between the ethno-linguistic Slavs currently in control of the territory and the ethnic Moldovans (a sub-group of ethnic Romanians), who are recognized by the international community as the legal owners of the land. This is the case because both of the groups claim that their people have been residing in this territory for centuries.

To support their claim that the territory of Transnistria is rightfully theirs, Transnistrians bring to attention the fact that this region has been a hub for Slavic people for centuries. For example, they argue

that in 1792, when the southern part of Transnistria was ceded by the Ottoman Empire to the Russian Empire, the Russians encouraged Ukrainians and Russians to migrate into the region to fill out the sparse populated territory (“National Identity” 3). Moreover, they note that from 1812 to 1917, all of Transnistria was under the control of the Russian Empire, which resulted in a lot of Russian-speaking people migrating into this region (Cash 29).

The Moldovans, on the other hand, claim that the Transnistrian territory is rightfully theirs because while the Transnistrian territory was never considered a part of Moldavia (a Romanian principality, which covered most of the territory that is currently a part of Moldova), some areas of today's Transnistria were owned by Moldavian boyars in the 16th century, which means that Moldavian people lived in this region (Magocsi 369). Also, in order to further support their claim to the Transnistrian territory, the Moldovans cite the fact that in 1775 Russia lured Romanian settlers from Moldavia to settle into the territory because they wanted the sparsely populated region to become a new Russian dominated principality known as New Moldavia (“History of Transnistria” 18). Last not least, the Moldovans highlight that not only were the territories of Bessarabia (the new name given to Moldavia once it was captured by the Russian Empire in 1812) and Transnistria joined together to form the Moldavian Autonomous Socialist Republic within Ukraine in 1924, but, in 1941, their ethnic kin, the Romanians, gained control over the territory for three years, which resulted in ethnic Romanians migrating into the region (“History of Transnistria” 32).

Regardless of the current debate regarding the ownership of Transnistria, however, the Slavs and the Moldovans living in this territory peacefully coexisted with one another for centuries. In fact, marriages between the ethno-lingual Slavs and the ethnic Moldovans used to constitute one-fifth of all the marriages in this region (Chinn 312). Thus, the primordialist theory of ethnic conflicts does not correctly explain the cause of the violence between the Slavs and the Moldovans.

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Although the primordialist explanation of the conflict between the Russian-speaking Slavs and the ethnic Moldovans is fundamentally incorrect, ethnic elites have used primordialist ideas to explain the conflict between the two groups of people. For example, Mircea Cosma, the Chairman of the Prahova County Council, claimed that the event known as the Bridge of Flowers, which allowed the inhabitants of Romania to cross the Prut River and to enter the Moldavian Soviet Socialist Republic without a passport or a visa, was a “nice revenge” against the Russian-speaking people given that former Russian leaders, Tsar Alexander I and Joseph Stalin, had split up the territory of Greater Romania (“Bridge of Flowers” 8). In other words, he argued that the conflict between the Slavs and the Moldovans was a result of past grievances.

6.2 Testing Constructivism In June of 1941, German and Romanian troops attacked and captured the Moldavian Soviet Socialist Republic, which resulted in the territory being under the control of ethnic Romanians for three years. Thus, when in August of 1944, Soviet forces were able to regain control of this region, Joseph Stalin settled on a policy of Russifying the population living in the territory in order to ensure that they wouldn’t attempt to rejoin Romania (“Romania Captured” 1). In order to do this, the Soviet leadership decided to utilize a three step plan: secret police officers were instructed to attack Romanian nationalist groups; ethnic Russians and Ukrainians were encouraged to migrate to the territory of Transnistria in order to outnumber the Romanian population living in the region; and the Cyrillic alphabet was imposed as the new Moldavian language in order to discourage the large ethnic Romanian sub-group from using the Romanian language to communicate (“Moldova’s Transnistrian Conflict” 29). All of these events made the Romanian sub-group living in this territory feel oppressed, which, in turn, resulted in them turning to their ethnic identity in order to feel empowered. In other words, during this

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time period, the Romanian sub-group developed a strong “Moldovan” identity in order to differentiate themselves from the other ethnic groups living in the Moldavian Soviet Socialist Republic. Thus, as the Soviet Union was on the brink of collapsing, and as Gorbachev’s policies of glasnost and perestroika gave the Soviet Republics more democratic freedoms, the Moldovans were able to take control of the Moldavian Soviet Socialist Republic and to take steps to benefit their ethnic group at the expense of the minorities living in the region (Bellginsger 303).

Determined to resist the domination by the new Moldovan government’s policies, the Slavs living in the region of Transnistria constructed a new Transnistrian identity in order to create a strong base for their political and social demands. This identity, which utilized Soviet rhetoric about the need for a friendship between the different groups of people living under the Soviet rule, focused on uniting the Russian speaking people (mostly Russians, Ukrainians, and Bulgarians) living in the Transnistria region in order to protect their ethno-lingual identity (“National Identity” 3).

That being said, the constructivism theory accurately sheds a light on some possible reasons why there was a dispute between the ethno-linguistic group of Slavs and the ethnic Moldovans by suggesting that the conflict is a result of a combination of key historical events and agreements. In other words, the Romanian annexation of the current territory of Moldova for three years, Stalin’s Russification policy, Gorbachev’s policies of glasnost and perestroika and the collapse of the Soviet Union all changed the social and political norms in this region, which, in turn, created the right conditions for the start of a conflict between rival ethnic groups.

6.3 Testing Instrumentalism Given that Mikhail Gorbachev’s policy of glasnost allowed people to openly express their opinions and complaints, the ethnic and the ethno-lingual groups living the Moldavian Soviet Socialist Republic were

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given the opportunity to politicize their group identities in order to achieve their goals (Bellginsger 303).

However, given that some of these groups’ goals conflicted with one another, there was an increase in the tensions between the different groups, which, later, resulted in violence.

Due to the fact that the majority of the people living in the Moldavian Soviet Socialist Republic considered themselves to be a part of a sub-Romanian ethnic group, these individuals were able to mobilize together in order to improve the status of their people. They did this by creating an ethnic political group known as the Popular Front of Moldova and using this group to change the electoral laws in the region in order to require that all the candidates running to become government officials would be nominated by electoral districts instead of social organizations, which had been the practice in the past. These new laws benefited the sub-Romanian group because they helped the Popular Front of Moldova to win the majority of the votes in the first democratic elections in the Moldavian Soviet Socialist Republic. That being said, after taking control of the central government, the new Moldovan leaders in the region took several actions which made the Slavic people living in the territory feel more excluded and threatened. First, they changed the Moldavian Soviet Socialist Republic’s name to the Soviet Socialist Republic of Moldova. Second, they changed their national flag to a flag identical to the Romanian tricolored flag. Third, they designated the Moldovan language (the Latin alphabet used by the Romanians), as the official language in the territory (“Popular Front of Moldova” 3). Fourth, they held a large-scale event known as the Bridge of Flowers, on the Prut River, which was meant to symbolize brotherly relations between Moldova and Romania (“Bridge of Flowers” 2). Fifth, they declared their independence from the Soviet Union (“Popular Front of Moldova” 1).

As a result of the increasingly exclusionary nationalist policies of the Moldovan Popular Front, the Russian, Ukrainian, Bulgarian, and other Russianspeaking people living in the Transnistrian region came

together to form a political interest group known as Yedinstvo-Unitatea Intermovement in order to protect themselves from the Moldovans, whom they considered to be a threat to their well-being. Through this ethno-lingual political group, the Slavs were able to win control of some local governments, which gave them some political power; however, given that the central government in the Soviet Socialist Republic of Moldova continually failed to address their grievances, this ethno-lingual group mobilized together to participate in political strikes in hopes of getting the Moldovan Popular Front to reverse their new policies (Moldova 6-8). Later, the Transnistrians, frustrated with the way that their group was being treated, declared their independence from Moldova (Perepelitsa 79). That being said, given that the Moldovans considered Transnistria to be a part of their territory, they deployed a lightly armed Moldovan police force to the Transnistrian region in order to restore the order in the region. Thus, viewing the Moldovan security forces in the Transnistrian territory as a military aggression against Transnistria, the Transnistrians attacked the Moldovan officers in order to protect themselves and their interests (Perepelitsa 81-84).

The start of the violent clashes between the ethnic Moldovans and the ethno-lingual Slavs was also a result of ethnic elites politicizing their ethnicity as an instrument to advance their political interests. For example, given that the collapse of the Soviet Union allowed the privatization of businesses and industries and given that Transnistria had large industrial enterprises in their territory, Igor Smirnov politicized his Slavic identity in order to become Transnistria’s first president, which, in turn, allowed him to ensure that Transnistria maintained its highly developed and profitable economy (Perepelitsa 54). That being said, after becoming president, Smirnov formed a national Transnistrian guard, obtained weapons from the Russia, and then fought against the Moldovan police officers that were stationed in Transnistria (Perepelitsa 81-84). This was the start of the Transnistrian conflict

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which still has not been resolved even though a ceasefire agreement was reached in 1992.

The real and perceived fears of the ethnic Romanians and the ethno-lingual Slavs resulted in them using their ethnicities as a political instrument to achieve their ethnic interests and needs. This, in turn, increased the tension between the two different groups and eventually led to a violent conflict meant to resolve their disagreements. Moreover, it is important to note that the ethnic elites’ politicization of their ethnicity in order to advance their personal political interests also played a part in causing the ethnic conflict.

7. Conclusion Although ethnic elites have sometimes used primordialist ideas to justify the conflict between the warring ethnic groups in the three post-Soviet states of Azerbaijan, Georgia, and Moldova, the primordialist theory has the least amount of explanatory power when it comes to explaining the causes of ethnic conflicts.

This is the case because the primordialist theory does not take into account the variations in the levels of conflict between the ethnic groups over time. For example, the primordialist theory does not explain why there were no serious conflicts between ethnic Armenians and ethnic Azerbaijanis until the 20th century; it does not reveal why the Georgians and the Ossetians were able to peacefully coexist with one another for most of the time that they were under Soviet rule; and it does not point out why marriages between the ethno-lingual Slavs and the ethnic Moldovans used to constitute one-fifth of all of the marriages in the region prior to the start of the violence between them.

Both the constructivist and instrumentalist theories, on the other hand, accurately explain some of the factors which caused the ethnic conflicts in Azerbaijan, Georgia, and Moldova. However, given that these theoretical explanations are incomplete on their own, the best way of explaining the causes of conflicts between these ethnic groups is by combining instrumentalist and constructivist ideas together in order to create a more comprehensive account of what

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happened. After all, the qualitative research in this thesis suggests that the ethnic conflicts in the three post-Soviet states occurred as a result of key historical events and agreements which changed the social and political norms in these societies and created the environment where ethnic groups, along with their elites, could use their ethnic identities as a tool to achieve their conflicting goals. For example, Stalin’s “divide and rule” policy, the Armenian Genocide, the new “Azerbaijani” nationalist sentiment established under the Soviet rule, and Gorbachev’s glasnost policy all changed the social and political norms in Azerbaijan and created a permissive environment for ethnic conflicts to take place. Thus, as the different ethnic groups mobilized in hopes of achieving their interests, these people’s conflicting goals resulted in numerous ethnic clashes. Moreover, the Russian Revolution, the inability of the Georgian government and the South Ossetian People’s Council to agree on the geographic territory that would be granted autonomy, Stalin’s “divide and rule” policy, the substantial amount of autonomy given to the Ossetians by the Soviet leadership, the collapse of the Soviet Union, and Gorbachev’s glasnost policy all changed the social and political norms in Georgia, which, in turn, created an environment where it was easy for two groups with conflicting interests to resort to violence.

Furthermore, the three-year Romanian annexation of the current territory of Moldova, Stalin’s Russification policy, Gorbachev’s policies of glasnost and perestroika, and the collapse of the Soviet Union all changed the social and political norms in Moldova.

Thus, the ethno-lingual Slavs’ and the ethnic Moldovans’ attempts to obtain their conflicting goals resulted in violent clashes between the two formerly peaceful groups.

8. Works Cited “2008 Georgia Russia Conflict.” CNN. 26 Mar. 2017.

Web. 7 Mar. 2018.

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“A frozen conflict explodes.” The Economist. 9 Apr. 2016. Web. 29 May 2017.

“Azeri killer Ramil Safarov: Concern over Armenian anger.” BBC. 3 Sept. 2012. Web. 29 May 2017.

Bellsinger, Mark R. Nationalist Mobilization and the Collapse of the Soviet State. Cambridge University Press, 2002.

“Bridge of Flowers.” Revolvy. n.d. Web. 8 March 2018.

Cash, Jennifer R. Villages on Stage: Folklore and Nationalism in the Republic of Moldova. LIT, 2011.

Dawisha, Adeed. "Nation and Nationalism: Historical Antecedents to Contemporary Debates."

International Studies Review (2002): 3-22. Web. 15 Oct. 2017.

“Diocese of Artsakh of the Armenian Apostolic Church.” Gandzasar. n.d. Web. 7 Mar. 2018.

“Early Kingdoms.” Eurasia Travel. n.d. Web. 7 Mar. 2018.

Elibegova, Anzhela. “Armenophobia in Azerbaijan: Causes and Effects.” EVN. 9 May 2017. Web. 29 May 2017.

Cerulo, Karen A. "Identity Construction: New Issues and New Directions." Annual Review of Sociology 23 (1997): 385-409. JSTOR. Web. 15 Oct. 2017.

Ellingsen, Tanja. "Colorful Community or Ethnic Witches' Brew? Multiethnicity and Domestic Conflict during and after the Cold War." The Journal of Conflict Resolution 4.1 (2000): 228249. JSTOR. Web. 15 Oct. 2017.

Chandra, Kanchan. "Cumulative Findings in the Study of Ethnic Politics." APSA-CP 12.1 (2001): 7-11. Web. 15 Oct. 2017.

Hakobyan, Tatul. “The Armenian-Azeri/Tatar Bloodbath, 1905-1906.” ANI Armenian Research Center. 4 Sept. 2015. Web. 7 Mar. 2018.

"Why Ethnic Parties Succeed." Cambridge University Press (2004): 1-13. Web. 15 Oct. 2017.

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Chinn, Jeffrey. The Politics of Language in Moldova.

George Washington University, 1994.

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“Beyond Greed and Grievance: Feasibility and Civil War.” Oxford Economic Papers (2006): 1-27.

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Comaroff, John L. and Paul C. Stern. "New Perspectives on Nationalism and War." Theory and Society 23.1 (1994): 35-45. JSTOR. Web. 15 Oct. 2017.

Hewitt, George. “Abkhazia and South Ossetia: heart of conflict, key to solution.” oDR. 19 Aug. 2008.

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Berkeley: University of California Press, 1985.

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Jesse, Neal G. and Kristen P. Williams. Ethnic Conflict: A Systematic Approach To Cases of Conflict. Washington: CQ Press, 2011. Print.

“Cultural Life.” Encyclopedia Britannica. n.d. Web. 7 Mar. 2018.

Jones, Stephen. The Making of Modern Georgia 1918-2012: The First Georgian Republic and Its Successors. Routledge, 2016.

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Kaufman, Stuart, “Ethnic Fears and Ethnic War in Karabagh.” University of Kentucky. Oct. 1998.

Web. 29 May 2017.

Kuburas, Melita. “Ethnic Conflict in NagornoKarabakh.” Review of European and Russian Affairs 6.1 (2011): 44-54. Web. 7 Mar. 2018.

Lake, David A. and Donald Rothchild. "Containing Fear: The Origins and Management of Ethnic Conflict." International Security 21.2 (1996): 4175. Web. 15 Oct. 2017.

MacFarquhar, Neil. “Azerbaijan Claims to Halt Violence in Nagorno-Karabakh, but Warns Armenia.” The New York Times. 3 Apr. 2016.

Web. 29 May 2017.

Magocsi, Paul R. A History of Ukraine: The Land and Its Peoples. University of Toronto Press, Incorporated, 2010.

“Moldova’s Transnistrian Conflict.” Huffington post. n.d. Web. 7 Mar. 2018.

Nazarli, Amina. “President Aliyev: NagornoKarabakh will never be independent.” Azernews.

23 Jan. 2017. Web. 29 May 2017.

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“Popular Front of Moldova.” Revolvy. n.d. Web. 7 Mar. 2018.

Posner, Daniel N. “The Political Salience of Cultural Differences: Why Chewas and Tumbukas Are Allies in Zambia and Adversaries in Malawi.” The American Political Science Review 98.4 (2004): 529-545. JSTOR. Web. 15 Oct. 2017.

Potier, Tim. Conflict in Nagorno-Karabakh, Abkhazia and South Ossetia: A Legal Appraisal.

Kluwer Law International, 2001.

“Romania Captured by the Soviet Union.” History. n.d. Web. 7 Mar. 2018.

Romashov, Vadim. “Tsopi: An AzerbaijaniArmenian World.” MEYDANTV. 2 Dec. 2016.

Web. 7 Mar. 2018.

Sahakyan, Bako. “Ex-Presidents.” Presidents of the Arsakh Republic. n.d. 29 May 2017.

“South Ossetia.” Geohistory. 24 Jan. 2015. Web. 7 Mar. 2018.

“The Sovietization of the Caucasus and Stalin’s Policy of Divide and Rule.” The Conflict of Nagorno-Karabakh. n.d. Web. 29 May 2017.

Paddock, Richard. “Armenia’s Rebel with a Cause.”

Los Angeles Times. 9 Feb. 1998. Web. 29 May 2017.

Van Evera, Stephen. “Primordialism Lives!” APSACP (2001): 20-22. Web. 15 Oct. 2017.

Perepelitsa, Grigory. “Conflict in Transnistria.

History, Causes, Evolution.” BlackSea. News. 19 Sept. 2010. Web. 8 Mar. 2018.

Williams, Carol. “Armenian Hard-liners Consolidate Control.” Los Angeles Times. 5 Feb. 1998. Web. 29 May 2017.

Petrosyan, Hamlet. “Tigranakert, Artsakh: Archaeologists Find the Ancient Armenian City in Karabakh.” Asbarez. 17 July 2017. Web. 7 Mar. 2018.

Wolff, Stefan. “Georgia: Abkhazia and South Ossetia.” Encyclopedia Princetoniensis. n.d. Web. 7 Mar. 2018.

Laura Yeghiazaryan

Laura Yeghiazaryan is a third year Political Science major with an emphasis in International Relations. She is expected to graduate in June of 2018.

Email: lauray@cpp.edu

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Tristen Marler

AMERICAN GOVERNMENT Section C

Navigating the Black Public Identity: How it Shapes Political Marginalization and Sympathy Towards Blacks Tristen Marler * Abstract

A plethora of social scientists have affirmed the political force of public identities. Public identities are opportunistically used to shape collective perceptions about individuals, groups, and entities. This thesis strives to analyze the public identity of African-Americans among various lenses of social coalitions in America. Different groups, such as: females, blacks, Generation X, Millennials, conservatives, Republicans, and college educated Americans will be examined in relation to how they perceive the black public identity. The methodology of this thesis accounts for the enumerated groups as control variables in linear regression models. Ultimately, this thesis aims to investigate how black and white Americans presently feel about a catalogue of divisive issues. These issues include the following: how much sympathy the American electorate feels towards blacks, if blacks still face a great amount of discrimination, if blacks are lazy, if blacks are violent, and if blacks should receive special government assistance due to the repercussions of slavery. Race continues to be a divisive force in American politics and this thesis aims to shed light on how public identity affects the American consensus of the black race. This thesis aims to contribute to the academia of race relations, regarding how African-Americans are perceived by various entities in America, and what observable differences account for attitudinal changes, as well as lower affective filters, towards blacks.© 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: Public Identity; Race

——— * Created by Tristen Marler, Department of Political Science, California State Polytechnic University, Pomona for her senior thesis project.

Correspondence concerning this research paper should be addressed to Tristen Marler, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: tjmarler@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 65-92. © 2018, Political Science Department, California State Polytechnic University, Pomona

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1. Introduction Despite the fact that America has always prided itself as being a nation built on virtue, liberty, freedom, and equality for all, it was essentially built on a paradox (Morgan 1972). This paradox being: despite the fact that Americans vowed to instill these very, enumerated values into their country; they built the country off the hard work and labor of black slaves (Morgan, 1972).

Essentially, this is what created the historical framework for the racial caste of America (Kilson and Cottingham, 1992). A nation that gave privileges solely to white male landowners, could not live up to the mainstream narrative of ensuring an American Dream for all. The American Paradigm was used as a pull factor throughout the Western hemisphere in order to attract cheap, immigrant labor. Although immigrants were met with xenophobic and nativist resistance, blacks are the most resented racial entity in American history.

Blacks have commonly been referred to as the least successful race in American society. Further, they have been continually ostracized, as well as systemically placed in the outskirts of American society. A litany of articles in academia focus on the relationship of race and the nature of the times; but, one aspect of race that remains consistent, is that a variety of social groups have consistent, preconceived notions about blacks. This thesis analyzes how different social groups perceive the black community, which contributes to various characterizations of the black public identity and a division among sympathy towards blacks in America.

In 2018, the political paralysis of America continues.

Pertaining to race, this is still one of the most profound ethical dilemmas America confronts. Although America is considered a postmodern society; how can the nation really move forward if they have yet to fully come to terms with their scorned, racist past? In effect, this has systematically put blacks at a socially reinforced, racial disadvantage. As demonstrated by the 2016 election, racial stereotypes and white nationalism have continued to be a divisive force in politics. As such, it is important

to research how blacks are viewed by the American public, since they experience conditions that are the direct antithesis of whites.

The main questions this paper investigates is: how does the black public identity differ among various groups in America, and what do present perceptions of the black public identity ultimately demonstrate?

Various academic journals, such as: Race, Gender & Class and the Political Science Quarterly, will be utilized to present relevant literature. This paper will also utilize quantitative data to gage how present perceptions of the black community are perceived by traditionally anti-black entities, such as: Republicans and conservatives.

This thesis is divided into a multitude of sections, in order to strategically provide an organized, cohesive perspective of the present topic. First, in the literature review, the paper will analyze how prominent groups in America gage the black public identity. The literature review will examine how the underlying perception of the black public identity changes, in terms of what group is being researched. It will further act as the case study portion of this paper, by providing a catalogue of examples that analyze how different groups in the U.S. perceive the black public identity. Next, the hypothesis will be stated, in order to provide a foundation for the methodology. The methodology will be discussed in the third section of this paper in order to give an appropriate explanation for the statistical tests that were performed in this thesis paper. Afterwards, the results will be analyzed to reveal the strength of the relationship between Americans’ level of sympathy towards blacks, and the corresponding rating of the black public identity among multiple groups. These groups are as follows: females, blacks, college educated people, Millennials, Generation X, Republicans, moderates, Independents, and conservatives. Finally, this paper will end with a conclusion section, which will aim to pose questions about the modern black public identity. It will identify the need for future scholarship, in order to address the relationship between the following: politics, the black public identity, and sympathy towards blacks.

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1.1 Argument As the research questions in the previous section stated, this thesis project intends to understand the relationship between the black public identity and various social group coalitions. It will examine how past historical repercussions within various groups, such as: Republicans and conservatives, contribute to a negative evaluation of the black public identity. The crux of this thesis’s argument is: many Americans ultimately still lack empathy towards blacks, which creates a negative black public identity. The argument made discerns that, even in 2018, blacks continue to have a negative public identity, which is perpetuated by various social group coalitions and a lack of sympathy.

1.2 Defining Public Identity In order to progress with the thesis paper, it is important to begin by defining public identity, which is the dependent variable of interest in this project. The definition of public identity entails the following: a public identity is a complex collection of attributes and attitudinal beliefs, which are schematically encoded to form a judgement about a given entity. Typically, negative public identities are created to further a political agenda and lower the public’s affective filters towards a given entity, in order to create policies that are detrimental against these entities; while avoiding fierce resistance and backlash. Ange-Marie Hancock (2003) also summarized the definition of public identity. In her own words, she called public identities “a constellation of stereotypes and moral judgments of various group identities ascribed …[that] are generally based upon non-group members' perceptions…for the advancement of … public policy goals” (Hancock, 2003). Hancock further catalyzes the process of forming a public identity as an accumulation of the following: trait stereotypes, behavior stereotypes, value conformity judgements, identity salience, identity centrality, affective orientation towards identity, and level of exposure to political culture (Hancock, 2003). Compared to traditional stereotypes, public identities produce a stronger effect because they lower people’s affective filters.

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1.3 Defining Sympathy Also, it is further important to define sympathy, which will be measured by various independent variables in this thesis. Sympathy can best be defined as the ability to mutually understand other people and feel compassionate towards their misfortunes. Taylor (1999) defined sympathy as the epitome of moral life; the phenomenon of being emotionally moved by other human beings. Bennett (2016) further examined the effects of sympathy as “having the power to disrupt prejudices, heal antagonisms, and render explicit the common ground between groups separated.” Bennett (2016) also defined sympathy as: being the basic pillar of the human soul; the spirit of mankind, captured in a single emotion. Feather and Sherman (2002) observed sympathy implies the feeling of empathy and care towards other human beings; acknowledging their misfortunes, rather than feeling resentment, and wanting to help them overcome injustices in society.

2. Literature Review The purpose of this literature review is to create a clear, accurate portrayal of the black public identity, from the perspective of various social coalitions. The social coalitions that will be analysed, in regard to their evaluation of the black public identity, are: blacks, Republicans, conservatives, Millennials, Generation X, females, and educated people. The first section will provide a historical foundation for the literature review, contextualizing how past events have affected peoples’ present perceptions of the black public identity.

Afterwards, white privilege will be discussed in order to explain the racial privilege that blacks lack access to, which leads to many of their dilemmas in American society. Further, factors that affect white and black Americans’ perception of the black public identity will be listed and explained. Following this, partisanship among Republicans and conservatives that contribute to a negative evaluation of the black public identity will be highlighted. Millennials and Generation X will also be

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accounted for in the proceeding section, which will investigate if there are substantial generational differences in racial resentment towards blacks.

Education, as a means of explaining a more positive evaluation of the black public identity, will also be explained. Finally, women’s level of sympathy towards blacks will be discussed, with respect to the consistent subjugation they have experienced (alongside blacks in American society). It is important to note, there was not much scholarship on how Millennials, Generation X, educated people, and women gage the black public identity. As such, I utilized the present literature to the best of my ability in order to provide a substantive foundation of literature for the proceeding quantitative analysis.

2.1 Historical Context of the Emerging Black Public Identity Following the Civil War, the state of the union was incredibly perplexed and dysfunctional. The Civil War essentially brought the question of slavery to a national platform. Essentially, the precarious case of the black identity also became a national debate. The Reconstruction Era characterized blackness as the counter narrative to whiteness. What could have been a hopeful future for blacks, turned into a rude awakening.

However, one dominant theme re-emerged: while blacks were on the outskirts of society, whites would go to great lengths to uphold their racial dominance in American society.

According to author Robin D.G. Kelley (1994), racism in the South was systemically established by local authorities. Essentially, this made it harder for blacks to push back against Southern communities. And, since blacks did not legally procure the official right to vote until 1965, they held no political power to help establish policies that were beneficial to their community. The bulk of the problem thus lied in blacks’ lack of political prowess and influence in state government. Blacks could not control local government, which is intended to be the most basic and transparent

level of government, making it near impossible to gain descriptive representation in their state.

Dr. Martin Luther King Jr. asserted that educational advancements and growing a healthy, black middle class, were the solutions to blacks’ dilemmas. His approach to combatting racism, was indicative of The Talented Tenth by W.E.B. DuBois. But, not every member of the black community agreed with Dr. King and DuBois. In the 1960’s, a rift was created in the African-American community, which was mainly perpetuated by social cleavages. This could definitely be attributed to the historical consequences of the white schema on the black identity. Ultimately, this led to misconceptions and racial stereotypes about blacks, within their respective community. Malcom X, who was a part of the black underclass, strongly disagreed with King’s tactics of non-violent protest and resistance. This is due to the fact that the socioeconomic backgrounds of these two men were starkly different. King was raised in a southern, middle class family; Malcom X was raised in the ghettos, learning to engage in hustling, as a means of survival (Kelley 1994). Ultimately, the separation among the black underclass and the black middle class, created present socioeconomic rifts within the AfricanAmerican community.

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2.2 The Societal Reinforcement of White Privilege In order to understand the privileges that blacks lack access to, it is important to contextualize the racial privilege whites have. Some of the effects of lacking white privilege have created a huge impact on the black community, such as: lacking access to government provided services, not being given the rights to due process, and not being treated fairly by authorities. All of these circumstances are in direct, glaring juxtaposition to the conditions experienced by white Americans, which is essentially how the mechanism of white privilege works.

Diagram 1A: Diagram Documenting Mechanism of Matrix of Domination

McIntosh (1988) held in an unfiltered, unwarranted speech, that she can count on many privileges, simply because of her skin color. On the other hand, she concluded that her “African-American co-workers, friends, and acquaintances …cannot count on most of these conditions” (McIntosh 1988). Although McIntosh speaks solely from her own perception in her speech, she addresses many of the most pedestrian accesses to privileges that whites enjoy, which blacks cannot count on. Essentially, these socially reinforced behaviors illustrate whiteness as a norm, while blackness is the antithesis of American society. And regardless of their

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socio-economic status, whites are able to access the privilege their skin color yields; this is referred to as the matrix of domination. McIntosh gently references this concept in her speech, by saying that her people have access to a catalogue of privileges, which she holds are “unconscious[ly]” prescribed as self-evident to the white race (McIntosh 1988). While white heterosexual males have access to the greatest amount of privileges, black women are on the outer most circle of the matrix of domination for race and gender (this can be further seen in diagram 1A above). Black women have access to the least amount of privileges; not only do they lack gender privilege, but they also lack racial privilege.

Besides having restricted access to everyday rights of accessibility, blacks have also faced social reinforcement of their inferior status in the American criminal justice system (Rose 2002). Rose (2002) traces the cycle of blackness not necessarily to the end of slavery, or rise of the Jim Crow era; instead, he believes that blackness was always cemented in the subjugation and racial injustice of colonization and capitalism. This is what the author cites as the Negro problem in America, in which black ‘“is the antonym of white. As the color white is associated with everything good... so black… [is associated] with all that is bad and low” (Rose 2002). As a result of this socially prescribed racial

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subjugation blacks encounter, Rose holds that “the use of ‘profiles’ by law enforcement officials is not only accepted but understood as good policing” (2002).

Critical antiracism affirms that white privilege is further systemically reinforced by disproportional representation in positions of power. In fact, Howard (2004) claims that “Critical antiracism insists that the phenomenon of racism is a structural one … about the way that power is distributed along racial lines”. In other words, from the perspective of critical antiracism, white privilege is bolstered by the fact that whites have an overwhelming representation in politics, law enforcement, and positions of power, which negatively impacts blacks (Reese 2006). Essentially, this contributes to political marginalization within the black community.

2.3 Blacks’ and Whites’ Perception of the Black Public Identity The reason why whites have consistently undermined blacks is because of the perceived social and political threat they pose. In fact, Evans and Giles (1986) suggested that Southerners would discriminate against blacks in order to minimize blacks’ perception of the power they yield in great numbers, as well as to maintain dominance in society. Evans and Giles (1986) asserted that research has shown that being aggressive towards blacks is whites’ way of “increas[ing] their social distance from blacks by discriminating against them.”

Thus, in the southern part of the U.S., whites have constructed a negative black public identity in order to minimize the threat of blacks and increase social distance. The study also found that among large concentrations of blacks, there are higher levels of ethnocentrism; this creates more black hatred towards whites (Evan and Giles 1986). Thus, in the south, blacks and whites have cultivated negative public identities of each other, in order to maintain respect towards their ethnic groups, while asserting strength and control over the perceived threats they pose to one another. In whites’ perception, a greater concentration of blacks can

definitely lead to a more negative evaluation of the black public identity (Evan and Giles 1986).

Another study by Tuch and Hughes (1996) found that while whites were becoming more supportive of racial equality, generally speaking, they still were opposed to pro-black measures. As such, they were content with making America equal, in terms of opportunities based on race, but did not want blacks to have any racial advantages. In fact, Tuch and Hughes (1996) asserted that whites viewed pro-black “programs [such] as encouraging preferential treatment, hiring, promotion, or admission quotas, as nearly unanimously reject[ing] …whites.” So, while whites thought it was permissible to increase racial equality, they were not in favor of the federal government taking steps towards readdressing slavery. As such, they did not favor increasing government spending in programs and policies designed to lift blacks out of poverty. This study also demonstrated the obliviousness whites had towards their own racial privilege; as they were unwilling to level the racial playing field of America. Thus, white privilege, and obliviousness whites have towards their racial privilege, plays a role in their evaluation of the black public identity; as they do not believe blacks deserve, nor need, extra governmental assistance to match whites’ progress.

Kleugel and Smith (1982) also found that whites perceived opportunities for blacks to be readily available and accessible. In particular, the study posited that the “white American public tends to deny structural limits to blacks' opportunity…. due to reverse discrimination” (Klugel and Smith, 1982). Reverse discrimination is the belief that whites are discriminated against because they are a part of the dominant racial group of America (Silverman, 1975). This is especially interesting, considering that whites perceived blacks to have a racial advantage; although, they undeniably lack white privilege. As such, the perceived level of sympathy towards blacks can be lower due to the notion of reverse discrimination, which blacks do not encounter in whites’ perspective (Silverman 1975). This also corresponds to a higher rating of blacks’ projected levels of: laziness and inability to pull themselves up from the roots of their

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ancestors. Thus, whites who believe in the notion of reverse discrimination are likely to have a more negative evaluation of the black public identity. Moreover, this group of whites believes they have it tougher than blacks.

However, it is important to note that not all whites have negative perceptions of blacks. In fact, Sigelman and Welch (1993) held that a negative black public identity is ultimately affected by the availability-based interpretation of blacks. The availability-based interpretation of blacks highlights that when whites have more interpersonal contact with blacks, they are able to gage issues the African-American community confronts; as well as elicit more positive feelings towards this race (Sigelman and Welch, 1993). But, this is only possible if whites are able to decrease their social distance in order to share interpersonal communication with blacks.

Adding to this and reversing the scenario, the same holds true for blacks; when they have a white friend, they tend to have higher positive attributions of whites, as well as a higher overall rating of the white public identity (Sigelman and Welch, 1993). Thus, this study reveals that interpersonal communication between blacks and whites create a more positive evaluation of one another’s ethnic groups (Sigelman and Welch, 1993).

In regard to blacks’ perception of their community’s public identity, there are many factors to consider. First, as mentioned in the opening section of the literature

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review, it is important to pay special attention to the socioeconomic rift within the black community. The emerging black leaders of the 20th century, Dr. Martin Luther King Jr. and Malcom X, had very different perceptions of how to advance the black race. Today, according to Dr. Renford Reese, this rift still exists (R. Reese, personal communication, January 25, 2018).

While middle class blacks are involved with the NAACP, the black underclass is extremely visible in the Black Lives Matter Movement (R. Reese, personal communication, January 25, 2018). Blacks have varying opinions on their race’s public identity, which can be attributed to socioeconomic classes.

Johnson (2014) stated the implicit association tests revealed: “when blacks are asked about their predilections, they express a solid preference for their group over whites.” Ultimately, this reveals that blacks have a high favorability, or overall rating of their own public identity. Johnson (2014) also held that the prevalent phenomenon of racism is overlooked as being exhibited by blacks, towards blacks, but happens far too often to ignore. Johnson (2014) highlighted this by explaining the following: “Negative associations thrust upon black people and black culture can color how black people view each other…there will be an observable impact on black intragroup perceptions.”

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Another explanation that evidences a more negative evaluation of the black public identity, by a member of this racial cluster, is the gender divide within the black community. While African-American men still have access to male privilege, African-American women lack access to gender privilege. Black women account for a much larger percentage of the black community than black men (King and Allen, 2009). The overall evaluation of the black public identity can thus vary from African-American women, to African-American men; as black men can view black women as sexual objects because of their inferiority status in America (King and Allen, 2009). This can be denoted by the double minority status black women are synonymous with. On the other hand, black women can rate their community’s public identity lower because of their male counterparts.

Overall, King and Allen’s study (2009) held that often times, African-American women were found to be overqualified to date members of their own race; since black men are frequently incarcerated, and not making significant gains, in comparison to African-American women. This could affect black women’s evaluation of the black public identity because it could be perceived as lower, as a result of many black men not being able to match the success of black women.

2.4 The Black Public Identity: From the Lens of Republicans and Conservatives Traditionally, blacks have been a consistent, reliable voting block for Democrats, while offering little support to the Republican Party. This is because blacks’ beliefs tend to be more aligned with the left side of the ideological spectrum; which is consequently aligned with Democrats. Republican elites have created a negative black public identity in their use of the Southern Strategy, which was implemented to attract low socioeconomic class, white constituents to vote with the Republican Party. However, since 1992, Republicans have noted the importance of blacks’ support in maintaining their strength and numbers in the GOP and the White House (Bolce, De Maio, and Muzzio 1992).

However, Republicans and conservatives tend to deny blacks’ lack of opportunities and the overall dilemmas that plague the black community. Overall, Bolce, De Maio, and Muzzio (1992) said “The single most important voting issue for blacks was problems of the poor, the modal response of blacks at all income and education levels.” And since Republicans, as well as conservatives, tend to favor less government spending, and intervention in Americans’ lives, blacks have not been a steady voting coalition for the Republican Party.

Thus, from the perspective of Republicans and conservatives, the black public identity is arguably less favorable; as they have never been able to fully win over this racial cleavage.

Specifically regarding conservatives, black support for this political cluster has been historically small. And, this is primarily attributed to the fact that “American conservatives have often embraced freedom movements elsewhere in the world, but never the civil rights movement in America” (Kilson, 1993). As such, American Conservatives did not see a need for the Civil Rights Movement, and tended to favor white domination, while being extremely critical of blacks’ perception of their subjugation in American society (Kilson, 1993). Overwhelmingly, Kilson (1993) further claimed that conservatives “claim a nearly zero track record in constructive programs [for blacks] in the private or the public sector.” As such, conservatives tend to have a more negative perception of the black public identity because they do not see the need for increased government support, or intervention, towards supporting the advancement of this ethnic group.

2.5 Generational Effects on the Black Public Identity There is an unarguably small amount of scholarship, on the issue of: how different generations perceive the black public identity. Interestingly enough, Cohen (2017) held that cross-culturally millennials did not agree that racism was America’s biggest problem.

However, millennials categorized racism as one of the three biggest problems in America today (Cohen 2017).

Nonetheless, Clement (2015) found that Millennials are

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not more tolerant than their parents. In fact, Clement observed that regarding work ethic “31 percent of Millennials rate blacks as lazier than whites, compared to 32 percent of Generation X whites and 35 percent of Baby Boomers” (2015). Thus, the notions that Millennials are the most tolerant generation yet, posits no strong relationships among the General Social Survey data, which is analyzed in the present article; as there is only a one percent decrease between how Millennials perceive blacks’ laziness, in comparison to Generation X (Clement 2015). And, there is only a three percent decrease in how Millennials rate blacks’ laziness, in comparison to Baby Boomers (Clement 2015).

2.6 Why Education Affects People’s View of the Black Public Identity The school of thought that explains why education affects a given person’s perception of the black public identity is as follows: through education, people tend to become both historically and politically knowledgeable.

This was further contended by Beard (1934), when he claimed that history is instrumental because it is a viable record of knowledge, which is taught through education.

Typically, more historical and political knowledge tends to liberalize individuals; helping them form stable opinions. This would affect a given person’s perception of the black public identity because blacks’ wretched history would, ideally, be accounted for in their evaluation of blacks. And, educated peoples’ abilities to have fair, stable evaluations of groups, while maintaining them over time, would also affect their perception of blacks’ public identity. Further, as Beard (1934) noted, indeed there is a political role among teachers: “educators and historians… strive…to throw light upon the political role of American education.”

Education is not only the path in which people can form more stable, fair opinions about issues, but it is also involves becoming more politically knowledgeable and aware of one’s civic duties. In this case, perhaps a civic duty of an educated, American citizen would involve: giving blacks the benefit of the doubt and showing empathy towards this community of color.

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2.7 Women’s Evaluation of Blacks While women are the historically undermined gender, blacks are the historically undermined race. As such, it is only natural to draw a comparison between the two communities, in regards to how women are more likely to sympathize with blacks. Smith and Kleugel (1984) observed that: a comparison can be drawn between competitive self-interest and group membership, among females and blacks. While for females, it is in terms of men and upholding male privilege, whites would like to maintain racial group stratification, as well as racial privilege over blacks. Essentially, the same notion exists among men striving to delegitimize females’ attempts of professional successes, as whites attempting to undermine blacks’ Civil Rights Movement successes (Smith and Kleugel, 1984). Thus, these two clusters of minorities should be able to sympathize with one another, due to: social group stratification, being excluded from certain privileges, and continually being denied the fair chance to progress, among other races and sexes. As such, the prediction that females would feel more warmly towards blacks is logical.

3. Hypothesis Relevant to the present literature review and scholarly articles cited, it is clear that the public identity of African-Americans is evaluated differently among various social groups. The quantitative research portion of this thesis, will test how various social coalitions feel towards the following notions: that blacks are lazy and violent, that blacks do not deserve governmental assistance, and that blacks still face a great deal of discrimination. Doing so, sympathy will be measured to predict a change in the evaluation of the black public identity. The following control variables will be accounted for, in order to test for correlation and statistical significance: Republicans, conservatives, Independents, moderates, Millennials, Generation X, females, blacks, and educated respondents. The body of

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literature suggests that there will be more negative evaluations of the black public identity among: Republicans, conservatives, Millennials, and Generation X. On the other hand, there should be a more positive evaluation of the black public identity among: blacks, females, and educated respondents. Ultimately, these differences can be accounted for among: partisanship, ideology, and similar struggles these groups have encountered that help them sympathize with blacks. As a result, it is fair to say that social stratification beliefs exist, which affect the amount of overall sympathy these groups feel towards blacks. However, ultimately the amount of sympathy a given respondent feels towards blacks, should influence their perception of the AfricanAmerican public identity. Moreover, the amount of sympathy a given respondent feels towards blacks, is affected by the stratification beliefs that their social groups are prejudice towards. As such, the following hypothesis was constructed accordingly: H1: The amount of sympathy that the American public feels towards blacks contributes to a negative black public identity.

Paradoxically, the null hypothesis for the paper would be: the amount of sympathy the American public feels towards black does NOT contribute to a negative black public identity.

4. Methodology 4.1 Content of Datasets/Expectations In order to appropriately test the hypothesis at stake, I will use a quantitative research design. While I will not be conducting my own survey, I will be using the 2016 dataset provided by the American National Elections Study (ANES). The American National Election Study is respectively curated every four years, during US presidential elections. The study was conducted in 2016, through an internet survey that ranged from January 22nd to January 28th. The main goal of ANES is to appropriately measure public opinion before a given

presidential election, and to enrich the field of social science with high quality data. The population of this sample is voting age and above; it is limited to US citizens. There were two waves in this study, which were pre-2016 election and post- 2016 election. This sample was strategically created to be representative of the voting population in the US. Respondents were directed to take the panel survey on the Internet, after being contacted with a mail invitation. While for the pre- 2016 election interview, participants responded from February 1, 2016, to May 27, 2016, during the post-2016 election interview, participants responded from April 6, 2016 to May 27, 2016. The subsequent dataset I worked with had a total of 1200 observations and 180 variables.

I expect to find significance, a strong correlation, and a relationship between a given respondent’s internalized amount of sympathy towards blacks, and their subsequent overall rating of blacks, while controlling for social group identifications. Since the black public identity is the constant dependent variable of the tests, there is control in the aspect of repetition and routine procedure, in the operationalization of the dependent variable. The sample is representative; thus, controlling extraneous variables that derive from a limited, narrow sample.

4.2 Analysis of Anes Sample Figure 1A

Tristen Marler Figure 1A notes the frequency of the given amount of times a single age group appears. Thus, the higher the frequency, the more the given age group respectively appears in the ANES sample. This histogram exemplifies that the most common age for a respondent ranges in the 60’s.

The sample in the American National Election Study appears to be representative, especially since it is a random sample. Regarding age, the youngest respondent was 19 years old; the oldest respondent was 95 years old.

Thus, the range of the sample was 76. On the other hand, the mean age of the sample was 48 years old. The standard deviation of the sample was 16.9. For a more visualized perspective of the sample’s age, please refer to figure 1A (on page 20). Regarding the generations of the sample, the generation to most frequently participate in the survey was Baby Boomers. There were 341 Millennials, 303 Generation X respondents, 437 Baby Boomers, and 119 Silent Generation respondents. The appendix can also be referred to for figure 1C, which contains a bar graph with the frequencies of the four generations. Concerning the ethnic makeup of the ANES sample, there were: 113 Hispanic respondents (9.4%), 23 Asian respondents (1.9%), 875 white Respondents (72.9%), and 135 black respondents (11.3%). Further, in terms of gender, among the 1200 respondents, the breakdown is as follows: 630 females (52.5%) and 570 males (47.5%). To see a visual representation of the gender breakdown, see figure 1B in the appendix. The education of the sample is as follows: 102 respondents have no high school diploma (8.5%), 411 respondents are high school graduates (34.3%), 257 respondents have attended some college (21.4%), 106 respondents have a 2-year degree (8.8%), 202 respondents have a 4 year degree (16.8%), and 122 respondents have attained post-graduate education (10.2%). Thus, the majority of respondents are high-school educated, while college educated respondents account for less than half of the sample. Figure 1E in the appendix can also be referred to see the education distribution of the sample. In terms of income, the most common income bracket is $20,000 to $29,000. 14.3% of the population makes over $100,000 annually. Figure 1D in the appendix shows the

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income distribution of the sample. The party identification and political ideology of the sample also varies; 17.1% of population is independent. The breakdown among the two major parties is as follows: while Republicans make up 34.9% of the sample, Democrats make up 48.5% of the sample. The most common, specific label for party identification is: strong Democrat, which 300 respondents chose as their party identification.

4.3 Measures The black public identity is my dependent variable that will remain constant throughout my statistical tests.

I will use the black thermometer score to operationalize the dependent variable. The thermometer score involved a respondent’s overall, perceived favorability of blacks (from 0-100). While a score of “0” signified very cold feelings towards blacks, a score of “50” signified no feelings, and “100” signified very warm feelings towards blacks. I decided to use this particular variable to measure the black public identity because it is interval-ratio and I intended to run regression. Linear regression is appropriate in order to test for correlation, control for social group variables, and to predict relationships between the black public identity and respondents’ measured levels of sympathy. The thermometer score was an objective measure of the black public identity because it simply asks respondents to provide an overall rating of blacks; it is not framed misleadingly to trigger a subsequent response.

On the other hand, I will have a total of seven independent variables in order to appropriately measure respondents’ levels of sympathy towards blacks. A series of statements measured respondents’ levels of sympathy towards blacks, which required a ranked response from respondents (that was scaled from 1-5).

While a score of “1” is strongly disagree, a score of “5” is strongly agree. The series of questions measured respondents’ sympathy towards blacks by asking the respondents if they agreed, or disagreed, with the following: whether generations of slavery has made it

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more difficult for blacks to progress, whether or not blacks should work their way up without special favors, whether or not blacks’ lack of progression is because they do not try hard enough, and whether or not blacks should try harder to get ahead, to match their white counterparts. All of these questions separately composed a single, ordinal variable. Essentially, an ordinal variable is a variable that requires a ranking from a respondent.

Ordinal, independent variables were also composed from the following questions: the respondent’s rating of blacks being violent, the respondent’s rating of blacks’ laziness, and the respondent’s rating of how much discrimination blacks face today.

4.4 Content of Design/Procedure In order to control for regression appropriately, I recoded variables and added them into the list of independent variables in the regression models.

Recoding involves changing old variables, into new variables, in order to appropriately separate responses to the preferred method of statistical testing. These variables are as follows: females, Millennials, Generation X, conservatives, moderates, Republicans, Independents, and college educated respondents.

Among all the control variables, the variables were simply recoded as follows: a value of “0” indicated that the respondent is not from a given social group, while a value of “1” indicated that the respondent was from a given social group. For example, regarding the control variable of females, “0” was used to denote respondents who were not females, while “1” denoted the respondent was a female. Specifically regarding college educated respondents, a projected value of “0” entailed a respondent had not attended college in some form, while a projected value of “1” entailed a respondent had attended college in some form (even if they did not graduate). College education was controlled because this is where students become enlightened about America’s treatment of blacks. I also decided to account for race by including black respondents as a control variable. This is appropriate because blacks were significant to the hypothesis of this project, as they were the main subject

of interest. I included Republicans and conservatives as control variables because I was interested in the significance of Conservatism and Republicanism, in terms of its influence on the evaluation of the black public identity. I also chose to control for females because they are a minority, so I would assume that they would feel naturally more sympathetic towards blacks.

On the other hand, I decided to control for age by creating control variables for Millennials and Generation X because the median age of the data set was 48; while I was curious in comparing the responses of Generation X and Millennials.

Since there is a constant interval-ratio, dependent variable, the test I will use is linear regression. Linear regression will also be able to take the enumerated social coalition variables into account. Linear regression is the correct statistical measure because many of the independent variables are ordinal, and the constant dependent variable is interval-ratio. Since linear regression is the most powerful statistical test predictor, it could take into account the control variables accordingly, while creating statistical values for the dependent variable. It outputs the following statistical measures: a significance value, an interval of confidence, a beta coefficient value, an R-squared value, and a constant value. These statistical measures will be analyzed, with respect to the dependent variable and control variables, in order to prove or disprove the hypothesis at stake.

4.5 Descriptive Statistics of Dependent Variable In order to perform frequencies and descriptive statistics on my dependent variable, black’s thermometer score, I had to recode the variable. I recoded the original variable, into a new variable, to separate the responses accordingly; a score of “0” (very cold feelings towards blacks) became “1”, a score of “50” (no feelings towards blacks) became “2”, and a score of “100” (warm feelings towards blacks) became “3.” This was the correct procedure to follow, in order to see the distribution of the dependent, interval-ratio variable accordingly; it filters out irrelevant responses that were between “0”,

Tristen Marler

“50”, and “100.” Recoding also helped account for the data labeled system missing. When I recoded the dependent variable, it became an ordinal variable; thus, the appropriate measures of central tendency to analyze are: mode, standard deviation, and range. The mode, or most frequent response from respondents, was a score of “3.” Again, a score of “3” signifies a given respondent has a very warm rating of blacks. The standard deviation of the responses for the black thermometer score was “.71.” The range of the responses was 2. In order to accurately gage the frequency distribution of the dependent variable, I organized the respondent’s ratings on a bar graph. A bar graph was the appropriate, graphical representation because the recoded variable is a categorical, ordinal variable. Below, is the graph of the frequency and distribution of the dependent variable. As one can see, the tallest bar on the graph is denoted by a warm rating of blacks. Out of the 1200 respondents, 192 (16.0% of the sample) had responses that were missing; while, a whopping 720 respondents (60% of the sample) indicated they had a warm feeling towards blacks. 155 respondents (12.9% of the sample) indicated that they had no feeling towards blacks. Finally, 133 respondents (11.1% of the sample) indicated that they had cold feeling towards blacks.

Figure 2A

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Figure 2A visually summarizes the distribution of the dependent variable: black’s overall rating. The percent in the present graph refers to the overall frequency percentage that these responses appeared. While for people feeling warmly towards blacks, this occurs well over 60%; people feeling coldly towards blacks accounts for less than 20% of responses.

4.6 Limitations of this Research Design While indeed there are limitations to every method of research in the social sciences, I would like to address the limitations of my quantitative research design. First, for my dependent variable, which was blacks’ thermometer score, there was a chunk of data missing.

192 respondents (16% of the sample) either skipped, or refused to answer the question. Further, ANES accounted for, and noted, their usage of resentment framing in two of my independent variables, such as asking respondents to rate the following statements: it’s just a matter of blacks not trying hard enough and blacks should work their way up without special favors. The racial resentment framing of these questions may have very well affected the subsequent measures of sympathy towards blacks. Also, I would like to note that although racial resentment and sympathy are not the same, I did use some racial resentment questions to measure sympathy. But, as the literature review noted, the more sympathy someone exhibits, the less likely they are to feel resentment towards a given entity. As such, the independent variables of: blacks don’t try hard enough and blacks should pull themselves out of the lower class without special favors are not perfect measures of sympathy. Nonetheless, I do believe that ranking the amount of discrimination blacks face, rating how violent a respondent perceives blacks to be, and rating how lazy a respondent perceives blacks to be are valid measures of sympathy. And, this is because they measure how much empathy (or lack thereof) respondents have towards the African-American community. While the control groups were substantial, since not all of the variables were interval-ratio, to an extent that could also impact the results of the linear regression. However,

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since my dependent variable is interval-ratio, it was still appropriate to use regression.

5. Results Since I am testing seven different independent variables, and a catalogue of control variables, in order to discuss the results in a strategic manner, I will group them and discuss them accordingly. Again, for every independent variable, the dependent variable was constant; the black thermometer score was always used to measure and operationalize a respondent’s rating of the black public identity. Further, I will mention the control variables used, and the control variables that were significant, in terms of the hypothesis at stake.

5.1 Black Support Variables

Independent Variable Label

B value

Significance Value

Standard Error

Constant

82.756

.000

2.524

Blacks should work their way up without special favors

-3.798

.000

.565

Black respondent

12.276

.000

2.195

Female respondent

3.456

.009

1.322

Conservative respondent

-4.940

.018

2.087

Independent respondent

-4.850

.013

1.955

Respondent who attended college

3.958

.004

1.369

Respondent in Generation X

-4.105

.012

1.632

The first set of independent variables that Respondent is -6.996 .000 1.598 Millennial were used to measure sympathy were various survey questions that asked respondents if blacks should receive governmental support and Beginning with the first variable, which asked whether or not blacks try hard enough to succeed. respondents if blacks should pull their own way out of Specifically, these questions asked respondents if they the lower class without special favors, the R-squared believed the following statements: that blacks tried hard value was .165. This means that the regression model enough, that blacks should pull themselves out of the explains 16.5% of the variation in respondents’ overall lower class without special favors, that blacks have a rating of blacks. The beta coefficient is -3.798, which harder time progressing because of slavery, and if blacks indicates that on average, for every increase in a get as much (or less) than they deserve. respondent’s agreement with the statement that blacks shouldn’t expect special favors, there was a -3.798 decrease in blacks’ rating. Next, the significance value is .000; thus, there is a 0% probability that the Table 1A (top right) relationship between a respondent’s feelings towards blacks receiving special treatment and a respondent’s rating of blacks is due to chance. In regard to the constant value, we can conclude that when the value of Table 1A documents results of respondents’ agreement with the blacks receiving special favors is zero, and when blacks’ following statement: blacks should work their way up without special overall rating is zero, the corresponding constant value favors. of blacks’ rating is 82.756. The results of this variable can also be seen in the table labeled 1A.

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Regarding the control variable results, for whether or not blacks should work their way up without special favors, the following were significant: black respondents, females, conservatives, Independents, college educated respondents, Millennials, and Generation X. The beta coefficient value for blacks was 12.276; for every increase in black respondents, there was a subsequent 12.276 increase in blacks’ overall rating. The significance value was .000; thus, there is a 0% probability that the relationship between black respondents and blacks’ overall rating is due to chance.

For females, the beta coefficient value was 3.456; on average, for every increase in female respondents, there was a 3.456 increase in blacks’ overall rating. The significance value was .009; thus, there is a 0.9% probability that the relationship between females and blacks’ rating is due to chance. Conservatives had a beta coefficient value of -4.940; so, for every increase in conservatives, there was a -4.940 decrease in blacks’ rating. The significance value for conservatives was .018; thus, there is a 1.8% probability that the relationship between conservatives and blacks’ overall rating is due to chance. For Independents, the beta coefficient value was -4.850; thus, for every increase in Independents, there was a corresponding -4.850 decrease in blacks’ rating. The significance value of Independents was .013; there is a 1.3% probability that the relationship between Independents and blacks’ rating

is due to chance. College educated respondents had a beta coefficient of 3.958; as the number of college educated respondents increased, there was a 3.958 increase in blacks’ rating. The significance value for college educated respondents was .004; there is a 0.4 % probability that the relationship between blacks’ rating and college educated respondents is due to chance. For respondents in Generation X, the beta coefficient value was -4.105; as the number of respondents in Generation X increased, there was a corresponding -4.105 decrease in the overall rating of blacks. The significance value for Generation X was. 012; as such, there is a 1.2% probability that the relationship between respondents in Generation X and blacks’ overall rating is due to chance.

Millennials had a beta coefficient value of -6.996; for every increase in Millennials, there was a corresponding -6.996 decrease in blacks’ rating. For Millennials, the significance value was .000; thus, there is a 0% chance that the relationship between Millennials and blacks’ rating is due to chance.

Table 2A Table 2A documents the results of the second black support variable which asks respondents the following question: has generations of slavery made it difficult for blacks to progress out of the lower class?

Independent Variable Label

B value

Significance Value

Standard Error

Constant

59.530

.000

2.511

Slavery has made it difficult for blacks to progress

3.367

.000

.524

Black Respondents

11.975

.000

2.212

Females

3.421

.010

1.324

Conservatives

-6.349

.002

2.041

Independents

-4.325

.029

1.974

College Educated Respondents

5.040

.000

1.348

Generation X

-4.329

.008

1.636

Millennials

-7.847

.000

1.608

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For the next independent variable, the respondent was asked to indicate if they agree with the statement that slavery has made it harder for blacks to progress out of the lower class. The R-squared value was .163; explaining 16.3% of the variation in respondents’ ratings of blacks. The beta coefficient was 3.367; indicating that on average, for every increase in a respondent’s belief that slavery has made it difficult for blacks to progress, there was a corresponding 3.367 increase in the favorability of blacks. The significance value is .000; thus, there is a 0% probability that the relationship between a respondent’s agreement with the statement that slavery has made it hard for blacks to progress, and their subsequent rating of blacks, is due to chance.

Evaluating the constant value, when the value of blacks’ thermometer score is zero and a respondent’s rating of the statement that slavery has made it hard for blacks to progress is zero, the corresponding constant value is 59.

530. Pictured on the previous page, table 2A also summarizes the data for this independent variable, including the control variable results.

Among the control variables, the following were significant: if a respondent was black, if a respondent was conservative, if a respondent was female, if a respondent was an Independent, if the respondent had attended college, if the respondent was from Generation X, and if the respondent was a Millennial. For black respondents, the b value was 11.975; indicating that as the number of black respondents increased, there was an 11.975 increase in blacks’ overall rating. The significance value for black respondents was .000; there is a 0% probability that the relationship between black respondents and blacks’ overall rating is due to chance.

Females had a beta coefficient value of 3.421; thus, as the number of females increased, blacks’ thermometer score also increased by 3.421. The significance score for females was .010; thus, there is a 1.0% probability that the relationship between females and blacks’ overall rating is due to chance. Conservatives had a beta coefficient value of -6.349; as the number of conservatives increased, there was a corresponding 6.349 decrease in blacks’ thermometer score. The significance score for conservatives was .002; there is a

0.2% probability that the relationship between conservatives and blacks’ thermometer score is due to chance. Independents had a beta coefficient value of 4.325; thus, as the number of Independents increased, there was a subsequent 4.325 decrease in blacks’ overall rating. The significance value was .029; so, there is a 2.9% probability that the relationship between Independents and blacks’ overall rating is due to chance.

For Generation X, the beta coefficient value was -4.329; as the number of Generation X respondents increased, there was a corresponding -4.329 decrease in the overall rating of blacks. Continuing, the significance value for Generation X was .008; there is a 0.8% chance that the relationship between blacks’ rating and Generation X is due to chance. For Millennials, the b value was -7.847; there was a -7.847 decrease in blacks’ rating, as the number of Millennials increased. The significance value for Millennials was .000; thus, there is a 0% probability that the relationship between Millennials and blacks’ overall rating is due to chance. For college educated respondents, the b-value was 5.040; as the number of college educated respondents increased, there was a corresponding 5.040 increase in blacks’ overall rating.

Also, the significance value for college educated respondents was .000; there is a 0% probability that the relationship between college educated respondents and blacks’ overall rating is due to chance.

Tristen Marler

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Table 3A Independent Variable Label

B value

Significance Value

Standard Error

Constant

56.312

.000

2.553

Have blacks gotten less than they deserve over the years?

4.564

.000

.576

Black Respondents

10.222

.000

2.226

Females

3.175

.016

1.311

Conservatives

-5.644

.005

2.025

Independents

-3.998

.041

1.952

Respondents who attended college

4.986

.000

1.335

Generation X

-4.205

.010

1.621

Millennials

-8.096

.000

1.595

Regarding the results of the control variables, the following were statistically significant: blacks, college educated respondents, females, Generation X, Millennials, Independents, and conservatives. For blacks, the b-value was 10.222; as the number of blacks increased, there was a subsequent 10.222 increase in blacks’ overall rating. The significance value for blacks was .000; there is a 0% probability that the relationship between blacks and blacks’ overall rating is due to chance. For college educated respondents, the b-value was 4.986; as the number of college educated respondents increased, there was a corresponding 4.986 increase in blacks’ overall rating. The significance value for college educated respondents was .000; there is a 0% probability that the relationship between college educated respondents and blacks’ overall rating is due to chance. For females, the b-value was 3.175; as the

Table 3A summarizes the results of respondents’ answers to the following question “have blacks gotten less than they deserve over the years?” The results are discussed below.

The next independent variable asked respondents if they believe blacks have gotten less than they deserve over the years. The R-squared value was .177; this regression model explains 17.7% of the variation in blacks’ overall rating. Continuing, the b-value was 4.564; as respondents agreed with the statement that blacks have gotten less than they deserve over the years, there was a subsequent 4.564 increase in blacks’ overall rating. The significance value was .000; thus, there is a 0% probability that the relationship between a respondent’s agreement with the statement that blacks have gotten less than they deserve over the years, and blacks’ overall rating, is due to chance. The constant value is 56.312; so, when blacks’ thermometer score is zero, as well as a respondents’ rating of whether blacks have gotten less than they deserve, blacks’ overall rating is 56.312. number of females increased, there was a corresponding 3.175 increase in the overall rating of blacks. The significance value for females was .016; there is 1.6% probability that the relationship between females and blacks’ overall rating is due to chance. Generation X had a b-value of -4.205; as the number of Generation X respondents increased, there was a corresponding -4.205 decrease in blacks’ overall rating. The significance value for Generation X is .010; there is a 1.0% probability that relationship between Generation X and blacks’ overall rating is due to chance. Independents had a b-value of 3.998; as the number of Independents increased, there was a corresponding -3.998 decrease in blacks’ overall rating. The significance value was .041; there is a 4.1% probability that the relationship between Independents and blacks’ overall rating is due to chance. Millennials had a beta coefficient of -8.096; as the number of Millennials increased, there was a corresponding -8.096 decrease in blacks’ overall rating. The significance value for Millennials was .000; there is a 0% probability that

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the relationship between Millennials and blacks’ overall rating is due to chance. Conservatives had a beta coefficient value of -5.644; as the number of conservatives increased, there was a corresponding -

5.644 decrease in blacks’ overall rating. Conservatives had a significance value of .005; there is a 0.5% probability that the relationship between blacks’ rating and conservatives is due to chance.

Table 4A

Independent Variable Label (Constant)

Beta Coefficient

Significance Value

Standard Error

82.417

.000

2.287

Blacks don’t try hard enough

-4.282

.000

.528

Females Black Respondents College Educated Respondents Millennials

2.887 13.565 4.103

.028 .000 .002

1.310 2.135 1.347

-6.417

.000

1.585

Gen X Conservatives Independents

-3.424 -5.950 -4.518

.035 .003 .020

1.621 2.008 1.937

Table 4A captures the data of the independent variable, which asked respondents the following: if blacks tried as hard as whites, they would be just as well off; it’s simply a matter of blacks not trying.

Below, the statistical results are analyzed in prose.

The next independent variable measured the respondent’s rating of the following statement: if blacks tried as hard as whites, they could be just as well off. The R-squared value was .179; explaining 17.9 % of variation in respondents’ feelings towards blacks. The beta coefficient is -4.282; on average for every increase in the belief that blacks don’t try hard enough, there was a subsequent -4.282 decrease in blacks’ overall rating.

The significance value is .00; thus, signaling there is a 0% probability that the relationship between a respondent’s agreement with the statement blacks don’t try hard enough and blacks’ overall rating is due to

chance. The constant value holds that: when the value of blacks’ thermometer score is zero, and when respondents’ ratings of blacks not trying hard enough is zero, the corresponding constant value of blacks’ thermometer score is 82.417. On the previous page, a visual summary is provided on table 4A. For the results of the control variables, the following had statistical significance: blacks, college educated respondents, females, Generation X, Independents, Millennials, and conservatives. Beginning with blacks, their b-value was 13.565; thus, as the number of black respondents increased, there was a corresponding increase of 13.565 in blacks’ overall rating. The significance value for blacks was .000; there is a 0% probability that the relationship between blacks and blacks’ overall rating is due to chance. College educated respondents have a b value of 4.103; as the number of college educated respondents increased, there was a

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subsequent 4.103 increase in blacks’ overall rating. The significance value of college educated respondents was .002; there is a 0.2% chance that the relationship between college educated respondents and blacks’ overall rating is due to chance. For females, the beta coefficient was 2.887; as the number of females increased, blacks’ overall rating increased by 2.887. The significance value for females was .028; there is a 2.8% probability that the relationship between females and blacks’ overall rating is due to chance. Generation X had a beta coefficient value of -3.424; as the number of respondents in Generation X increased, there was a corresponding -3.424 decrease in blacks’ overall rating.

The significance value for Generation X was .035; there is a 3.5% probability that the relationship between respondents in Generation X and blacks’ overall rating is due to chance. Independents had a beta coefficient value of -4.518; as the number of Independents increased, there was a corresponding -4.518 decrease in blacks’ overall rating. The significance value for Independents was .020; there is a 2.0% probability that the relationship between Independents and blacks’ overall rating is due to chance. Millennials had a b-value of -6.417; as the number of Millennials increased, there was a corresponding -6.417 decrease in blacks’ overall rating. The significance value for Millennials was .000; there is a 0% chance that the relationship between Millennials and blacks’ overall rating is due to chance.

Conservatives had a beta coefficient of -5.950; as the number of conservatives increased, there was a corresponding -5.950 decrease in blacks’ overall rating.

The significance value for conservatives was .003; there is a 0.3% chance that the relationship between conservatives and blacks’ overall rating is due to chance.

the word “violent” describe most whites, and how well does the word “lazy” describe most whites.

Beginning with the categorical measure of blacks being perceived as “violent”, the R-squared value was .266. This means that the regression model accounts for 26.6% of variation in respondents’ ratings of blacks. The beta coefficient value was: -8.228; signifying that as a respondent’s rating of blacks being violent increased, there was a subsequent -8.228 decrease in blacks’ overall rating. The significance value is .000; thus, there is a 0% probability that the relationship between a respondent’s perception of blacks being violent, and their overall rating of blacks, is due to chance. Also, the constant is 83.482; when blacks’ thermometer score is zero, and blacks’ perceived level of laziness is zero, the subsequent overall rating of blacks is 83.482. The results are also summarized in table 5A on the following page.

Table 5A Independent Variable Label

Beta Coefficient

Significance Value

Standard Error

Constant

83.482

.000

2.198

Rating of blacks being “violent”

-8.228

.000

.576

Rating of whites being “violent”

3.589

.000

.660

Black Respondents

12.073

.000

2.097

Generation X

-3.359

.030

1.545

Millennials

-6.593

.000

1.510

5.2 Blacks’ Attributes Variables

Females

3.033

.015

1.242

Conservatives

-5.121

.007

1.897

The following section will include the results of respondents’ answers to the following questions: how well does the word “violent” describe most blacks, and how well does the word “lazy” describe most blacks.

These particular regression models have extra control variables which measure the following: how well does

Moderates

-4.071

.010

1.578

Independents

-5.915

.001

1.828

Republicans

-3.574

.045

1.777

College Educated Respondents

3.075

.016

1.276

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Table 5A highlights the results of the following independent variable: how well does the word “violent” characterize blacks.

Regarding the control variables’ results, there was significance found among the following groups: blacks, Millennials, females, conservatives, moderates, Independents, college educated respondents, Republicans, Generation X, and a respondent’s perceived rating of whites’ violentness. For black respondents, the b value was 12.073; for every increase in black respondents, there was a subsequent 12.073 increase in blacks’ overall rating. Regarding black respondents’ significance value, it was .000; there is a 0% probability that the relationship between black respondents and blacks’ overall rating is due to chance.

For Millennials, the b value was -6.593; indicating that for every increase in Millennials, there was a subsequent -6.593 decrease in blacks’ overall rating. The significance value for Millennials is .000; signaling that there is a 0% probability that the relationship between Millennials and blacks’ overall rating is due to chance.

For females, the beta coefficient value was 3.033; on average, there was a 3.033 increase in blacks’ rating for every increase in female respondents. The significance value for females was .015; thus, there is a 1.5% probability that the relationship between females and blacks’ overall rating is due to chance. For conservatives, the beta coefficient was -5.121; thus, for every increase in conservatives, there was a corresponding -5.121 decrease in blacks’ thermometer score. The significance value for conservatives was .007; thus, there is a 0.7% probability that the relationship between conservatives and blacks’ overall rating is due to chance. For Independents, the beta coefficient value was -5.915; for every increase in Independents, there was a corresponding -5.915 decrease in blacks’ overall rating. The significance value for Independents was .001; thus, there is a 0.1%

probability that the relationship between blacks’ rating and Independents is due to chance. The beta coefficient for college educated respondents was 3.075; thus, for every increase in college educated respondents, there was a 3.075 increase in blacks’ overall rating. Also, the significance value for college educated respondents is .016; thus, there is 1.6% probability that the relationship between college educated respondents and blacks’ overall rating is due to chance. Generation X had a 3.359 beta coefficient value; as the number of respondents from Generation X increased, there was a corresponding -3.359 decrease in blacks’ overall rating.

Pertaining to the significance value, it was .030 for Generation X; thus, there is a 3.0% probability that the relationship between Generation X and blacks’ overall rating is due to chance. For moderates, the beta coefficient value was -4.071; as the number of moderates increased, there was a subsequent -4.071 decrease in blacks’ overall rating. Also, the significance value for moderates was .010; there is a 1.0% probability that the relationship between moderates and blacks’ overall rating is due to chance. Republicans had a b value of 3.574; as the number of Republicans increased, there was a corresponding -3.574 decrease in blacks’ overall rating. The significance value for Republicans was .045; there is a 4.5% probability that the relationship between Republicans and blacks’ overall rating is due to chance.

For the last control variable, which was an overall rating of whites’ perceived level of being violent, the beta coefficient was 3.589; thus, as the rating of whites’ perceived level of being violent increased, there was a corresponding 3.589 increase in blacks’ overall rating.

The significance value for whites’ perceived level of being violent was .000; thus, there is 0% probability that the relationship between whites’ rating of being violent and blacks’ overall rating is due to chance.

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Table 6A Independent Variable Label

Beta Coefficient

Significance Value

Standard Error

Constant

83.351

.000

2.072

Respondent’s rating of black’s laziness

-8.904

.000

.556

Respondent’s rating of white’s laziness

3.666

.000

.663

Black Respondents

10.780

.000

2.006

Millennials

-5.839

.000

1.493

White Respondents

-1.835

.287

1.723

Females

2.762

.024

1.219

Conservatives

-5.375

.004

1.847

Moderates

-3.227

.038

1.550

Independents

-6.138

.001

1.792

College Educated Respondents

2.926

.020

1.252

Table 6A displays the results of blacks’ rating of laziness, with respect to the control group variables.

Now, the results of the independent variable that measured how lazy respondents rated blacks will be discussed. The R-squared value was .292; thus, the regression model accounted for 29.2% of variation in respondents’ ratings of blacks’ laziness. The beta coefficient value was -8.904; highlighting that for every increase in the belief that blacks are lazy, there was a corresponding -8.904 decrease in blacks’ overall rating.

The significance value was .000; thus, there is a 0% probability that the relationship between blacks’ perceived level of laziness and blacks’ overall rating is due to chance. The constant value is 83.351; when the rating of blacks’ laziness is zero and when blacks’ thermometer score is zero, the corresponding value of blacks’ thermometer score is 83.351. Please refer to table 6A (on the previous page) for a brief snapshot of the results.

The following control variables were significant, in terms of a respondent’s rating of blacks’

laziness: Millennials, black respondents, females, conservatives, moderates, Independents, college educated respondents, and how lazy respondents rated whites. Millennials had a beta coefficient value of – 5.839; as the number of Millennials increased, there was a subsequent -5.839 decrease in blacks’ overall rating.

The significance value for Millennials was .000; there is a 0% probability that the relationship between Millennials and blacks’ overall rating is due to chance.

Black respondents had a beta coefficient value of 10.780; as the number of black respondents increased, there was a subsequent 10.780 increase in blacks’ overall rating. The significance value for black respondents was .000; there is a 0% probability that the relationship between black respondents and blacks’ overall rating is due to chance. For college educated respondents, the beta coefficient value was 2.926; as the number of college educated respondents increased, there was a subsequent 2.926 increase in blacks’ overall rating. The significance value for college educated respondents was .020; there is a 2.0% chance that the relationship between college educated respondents and blacks’

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overall rating is due to chance. Females had a b value of 2.762; as the number of females increased, blacks’ overall rating increased by 2.762. The significance value for females was .024; there is a 2.4% chance that the relationship between females and blacks’ overall rating is due to chance. Independents had a beta coefficient value of 6.138; there was a -6.138 decrease in blacks’ rating, as the number of independents increased. The significance value for Independents was .001; there is a 0.01% probability that the relationship between Independents and blacks’ overall rating is due to chance. For moderates, the b-value was -3.227; as the number of moderates increased, there was a corresponding -3.227 decrease in blacks’ overall rating.

The significance value for moderates was .038; there is a 3.8% probability that the relationship between moderates and blacks’ overall rating is due to chance.

Conservatives had a b-value of -5.375; as the number of conservatives increased, there was a corresponding 5.375 decrease in blacks’ overall rating. The significance value for conservatives is .004; there is a 0.4% probability that the relationship between conservatives and blacks’ overall rating is due to chance. Finally, the last control variable measured respondents’ perceptions of whites’ laziness. The beta coefficient value was 3.666; as whites’ perceived levels of laziness increased, there was a corresponding 3.666 increase in blacks’ overall rating. The significance value for whites’ perceived level of laziness was .000; there is a 0% chance that the relationship between whites’ perceived level of laziness and blacks’ overall rating is due to chance.

5.3 Blacks’ Present Discrimination Variable In this sub-section of the results, the following variable will be statistically analyzed: how respondents rate the amount of discrimination blacks face today.

This section featured an additional control variable, which asked the respondents to rate the amount of discrimination whites face today.

Table 7A Independent Variable Label

Beta Coefficient

Significance Value

Standard Error

Constant

62.636

.000

3.161

How much discrimination do blacks face today?

3.448

.000

.638

How much discrimination do whites face today?

-2.086

.000

.589

Females

2.783

.036

1.324

Conservatives

-6.127

.003

2.048

Independents

-4.448

.024

1.972

College Educated Respondents

4.673

.001

1.357

.017

1.636

Generation X Millennials

-6.544

.000

1.601

Blacks

11.456

.000

2.229

Table 7A represents the results of the independent variable that measures the amount of discrimination blacks presently face.

Beginning with the independent variable that measured respondents’ perceptions of how much discrimination blacks presently face; the significance value was .000. Thus, there is a 0% probability that a respondent’s rating of the amount of discrimination blacks face, and their overall rating of blacks, is due to chance. The R-squared value is .163; suggesting that 16.3% of variation in blacks’ overall rating is accounted for in this regression model. Continuing, the constant value was 62.636; thus, when both the dependent variable (black’s rating) is zero and the present

Tristen Marler

independent variable (perceived amount of discrimination blacks face) is zero, the corresponding rating of blacks is 62.636. The beta coefficient value was 3.448; for every increase in the belief that blacks face a great deal of discrimination, there was a corresponding 3.448 increase in blacks’ overall rating. The results are also accounted for in table 7A on the present page.

Regarding the control variables, for the present rating of how much discrimination blacks face, the following variables were statistically significant: blacks, females, conservatives, Independents, college educated respondents, Generation X, Millennials, and a respondent’s rating of the perceived amount of discrimination whites face. Blacks had a beta coefficient value of 11.456; as the number of black respondents increased, there was a subsequent 11.456 increase in blacks’ overall rating. Blacks had a significance value of .000; there is a 0% probability that the relationship between black respondents and blacks’ overall rating is due to chance. Females had a b-value of 2.783; as the number of females increased, there was a corresponding 2.783 increase in blacks’ overall rating. Females had a significance value of .036; there is a 3.6% probability that the relationship between blacks’ rating and females is due to chance. Conservatives had a beta coefficient value of -6.127; as the number of conservatives increased, there was a -6.127 decrease in blacks’ overall rating. The significance value for conservatives was .003; there is a 0.3% probability that the relationship between conservatives and blacks’ overall rating is due to chance. College educated respondents had a b-value of 4.673; as the number of college educated respondents increased, there was a subsequent 4.673 increase in blacks’ overall rating. The significance value for college educated respondents was .001; there is a 0.1% probability that the relationship between college educated respondents and blacks’ rating is due to chance.

Generation X had a b value of -3.908; as the number of respondents from Generation X increased, there was a corresponding -3.908 decrease in blacks’ overall rating.

The significance value for Generation X was .017; there is a 1.7% probability that the relationship between Generation X and blacks’ overall rating is due to chance.

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Millennials had a beta coefficient value of -6.544; thus, as the number of Millennials increased, there was a corresponding -6.544 decrease in blacks’ overall rating.

The significance value for Millennials was .000; there is a 0% probability that the relationship between Millennials and blacks’ overall rating is due to chance.

Independents had a b-value of -4.448; as the number of Independents increased, blacks’ overall rating decreased by -4.448. The significance value for Independents was .024; there is a 2.4% chance that the relationship between Independents and blacks’ overall rating is due to chance. Lastly, the control variable that measured whites’ perceived amount of discrimination had a bvalue of -2.086; thus, as whites’ perceived levels of discrimination increased, there was a corresponding 2.086 decrease in blacks’ overall rating. The significance value for whites’ perceived amount of discrimination was .000; there is a 0% probability that the relationship between whites’ perceived amount of discrimination and blacks’ overall rating is due to chance.

6. Conclusion This thesis intended to analyze the relationship between Americans’ level of sympathy and blacks’ corresponding public identity. It posited that there may be a negative public identity caused by group stratification beliefs among: conservatives, Independents, Generation X, and Millennials. On the other hand, it further hypothesized there may be a more positive attribution of the black public identity, due to stratification beliefs, among: females, AfricanAmericans, and college educated respondents. By investigating the relationship between blacks’ public identity and various measures of sympathy, the predictions of the regression models were ultimately correct. While non-liberal entities tended to feel colder towards blacks; more progressive entities tended to feel warmer towards blacks. Controlling for the enumerated groups of: blacks, Millennials, Republicans, Generation X, moderates, conservatives, Independents, females, and college-educated respondents gave me the opportunity

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to see how blacks’ rating varies among social group coalitions. As social group coalitions are a huge influence and predictor of how Americans will decide their standings on key, ideological issues, this was the appropriate predictor for my given hypothesis at stake.

I am able to accept my hypothesis and conclude that there may be a relationship among Americans’ level of sympathy towards blacks and the subsequent evaluation of the black public identity, with respect to a variety of social groups. As respondents perceived blacks to be: lazy, violent, not trying hard enough, and undeserving of government assistance, there was an overall lower rating of blacks’ public identity. In regard to the white control variable, when respondents perceived whites to be discriminated against, blacks’ public identity was also rated lower. But, there was a higher evaluation of the black public identity when sympathy was measured by the following questions: has slavery made it difficult for blacks to progress, have blacks gotten less than they deserve over the years, and how much discrimination do blacks face today. And, these questions were equally framed, so the results were not skewed in favor of a higher rating for blacks. Ultimately, further research is needed to solidify this claim. I cannot definitively say there is a relationship between Americans’ levels of sympathy towards blacks and a corresponding, negative evaluation of the black public identity, with respect to various social groups. And, this is because the R-squared values of my regression models were weak. Thus, this suggests that not a substantial amount of predictive power was provided forth in the models.

Nonetheless, I did identify the need for future research and create a formal argument, as to why it is important to investigate the black public identity and Americans’ level of sympathy towards blacks. The testretest theory holds that the more research experiments and surveys are replicated, the more the validity of the results grows. Thus, in the future, scholars should specifically research the relationship between the sympathy the American public has towards blacks, their subsequent evaluation of the black public identity, and corresponding negative policies that were legislated against this community of color. Ultimately, America is

not in a post racism era, and there is much work to be done by scholars in order to interpret how AfricanAmericans’ public identity has worked towards their political marginalization and subjugation in American society.

7. Appendix Figure 1B

Figure 1B documents the frequency percentages of the sample’s gender, or how great of a percentage each gender accounts for in the ANES sample. The percentage label to the left of the graph thus signifies the frequency’s percentage for each respective gender.

While females are well over 50% of the sample, males are below 50%, and above 40% respectively.

Tristen Marler

Figure 1C

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Figure 1D accounts for the frequencies in household income ranges of the ANES sample. The percentage label to the left of the graph signifies the frequency’s percentage for each respective income bracket. Frequency refers to how often a given income bracket is represented in the ANES sample. The most common income bracket has the tallest bar in the graphical model, which is $20,000- $29,999.

Conversely, the income bracket that appears the least, the smallest bar on the graphical model, is $500,000 or more.

Figure 1E

Figure 1C accounts for the frequency percentages of the generations represented in the ANES sample. The percentage label to the left of the graph thus signifies the frequency’s percentage for each respective generation. Frequency refers to how often a given generation is represented in the ANES sample. While Baby Boomers are well over 30% of the sample; Silent Generation respondents account for 10% of the given sample.

Figure 1D

Figure 1E accounts for the various levels of education among the ANES sample. The percentage label to the left of the graph thus signifies the frequency’s percentage for each respective educational level. Frequency refers to how often a given education level is represented in the ANES sample. From the graph, it is clear that high school graduates had the tallest bar, and thus were the most frequent level of education, in the given sample.

8. Works Cited Beard, Charles R. 1934. "Written History as an Act of Faith." American Historical Review 39 (January): 219.

Bennett, J. 2016. “Whitman's Sympathies.” Political Research Quarterly, 69. no.3: 607-620.

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Retrieved from http://www.jstor.org.proxy.library.cpp.edu/sta ble/44018560 Bolce, L., De Maio, G., & Muzzio, D. 1992. “Blacks and the Republican Party: The 20 Percent Solution.” Political Science Quarterly 107, no.1 63-79. doi:10.2307/2152134.

Clement, Scott. 2015. “Millennials are Just as Racist as Their Parents.” June 23. https://www.washingtonpost.com/news/wonk/ wp/2015/06/23/millennials-are-just-as-racistas-their-parents/?utm_term=.4178f83b5229 (June 23, 2015).

Cohen, C.J., Fowler, M., Medenica, V.E., and Rogowski, J.C. “The “Woke” Generation?

Millennial Attitudes on Race in the US.” October. https://genforwardsurvey.com/assets/uploads/2 017/10/GenForward-Oct-2017-FinalReport.pdf (October 2017).

Evans, A., & Giles, M. 1986. “Effects of Percent Black on Blacks' Perceptions of Relative Power and Social Distance.” Journal of Black Studies 17, no.1: 3-14. Retrieved from http://www.jstor.org.proxy.library.cpp.edu/sta ble/2784037 Feather, N.T. & Sherman, R. 2002. “Envy, Resentment, Schadenfreude, and Sympathy: Reactions to Deserved and Undeserved Achievement and Subsequent Failure.” Personality and Social Psychology Bulletin 28 (July), no. 77: 953961. Retrieved from http://journals.sagepub.com.proxy.library.cpp. edu/doi/pdf/10.1177/014616720202800708 Hancock, Ange-Marie. 2003. "Contemporary Welfare Reform and the Public Identity of the "Welfare Queen.” Race, Gender & Class 10, no. 1: 31-59.

http://www.jstor.org.proxy.library.cpp.edu/sta ble/41675059.

Howard, Philip S. S. 2004. "White Privilege: For or Against? A Discussion of Ostensibly Antiracist Discourses in Critical Whiteness Studies." Race, Gender & Class 11, no. 4: 6379. http://www.jstor.org/stable/43496819.

Johnson, Theodore. 2014. “Black-on- Black Racism: The Hazards of Implicit Bias.” December 26. https://www.theatlantic.com/politics/archive/2 014/12/black-on-black-racism-the-hazards-ofimplicit-bias/384028/ Kelley, Robin D.G. 1994. Race Rebel: Culture, Politics, and the Black Working Class.

Massachusetts: Free Press.

Kilson, M. 1993. “Anatomy of Black Conservatism.”

Transition 59 : 4-19. doi:10.2307/2934868 Kilson, Martin & Cottingham, C. 1992. "Dilemmas of Race in American Politics." The Newsletter of PEGS 2, no. 3: 7-8. http://www.jstor.org.proxy.library.cpp.edu/sta ble/20710576 King, A. & Allen, T. 2009. “Personal Characteristics of the Ideal African American Marriage Partner: A Survey of Adult Black Men and Women.”

Journal of Black Studies 39, no.4: 570-588.

Retrieved from http://www.jstor.org.proxy.library.cpp.edu/sta ble/40282583 Kluegel, J., & Smith, E. 1982. “Whites' Beliefs about Blacks' Opportunity.” American Sociological Review 47, no.4: 518-532. Retrieved from http://www.jstor.org/stable/2095196 McIntosh, Peggy. 2006. “White Privilege: Unpacking the Invisible Knapsack.” November 11. https://www.pcc.edu/resources/illumination/do cuments/white-privilege-essay-mcintosh.pdf.

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Morgan, E. 1972. “Slavery and Freedom: The American Paradox. “ The Journal of American History 59, no.1: 5-29. doi:10.2307/1888384 Reese, Renford. 2006. Prison Race. North Carolina: Carolina Academic Press.

Rose, William. 2002. "Crimes of Color: Risk, Profiling, and the Contemporary Racialization of Social Control." International Journal of Politics, Culture, and Society 16, no. 2: 179-205. http://www.jstor.org.proxy.library.cpp.edu/sta ble/20020159.

Sigelman, L., & Welch, S. 1993. “The Contact Hypothesis Revisited: Black-White Interaction and Positive Racial Attitudes. “ Social Forces 71, no.3:781-795. doi:10.2307/2579895 Silverman, B.I. 1975. “Reverse Discrimination.”

Peabody Journal of Education 52, no. 2: 116– 121. www.jstor.org/stable/1491799.

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Smith, E., & Kluegel, J. 1984. “Beliefs and Attitudes About Women's Opportunity: Comparisons with Beliefs About Blacks and a General Perspective.” Social Psychology Quarterly 47, no.1:81-95. Retrieved from http://www.jstor.org.proxy.library.cpp.edu/sta ble/3033891 Taylor, C. 1999. “Sympathy.”The Journal of Ethics 3, no.1: 73-87. Retrieved from http://www.jstor.org.proxy.library.cpp.edu/sta ble/25115601 Tuch, S., & Hughes, M. 1996. “Whites' Racial Policy Attitudes.” Social Science Quarterly, 77, no.4:723-745. Retrieved from http://www.jstor.org.proxy.library.cpp.edu/sta ble/42863526

Tristen J. Marler

Tristen J. Marler is a fourth year Cal Poly student majoring in Political Science, with a minor in English Literature. She conducted her senior thesis on the black community and their public identity in the U.S. Her expected graduation date is December 2018. Her ambitions include attending graduate school and entering into a PhD program to become a professor of Political Science, with an emphasis in race and ethnic politics.

Email: tjmarler@cpp.edu

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Ingrid Perez Flores

AMERICAN GOVERNMENT Section C

How Do States React to Federal Action on Immigration?

Ingrid Perez Flores * Abstract This research examines the agency states and local governments hold over immigration-related legislation, despite the issue being a federal responsibility. Over time, states have created legislation to address their own needs in response to growing immigrant populations, border security, and immigrant rights. Similarly, Miriam Wells in The Grassroots Configuration of U.S. Immigration Policy recognizes the contradictory nature reforming immigration holds as states experience the burden of increased immigration, but the federal government has the authority to enforce and create immigration policy. Immigration has been a salient and contentious issue in the history of the United States and while Congress has attempted to create comprehensive immigration reform, states have created legislation where the policy failed to represent them. In an effort to answer how states have reacted to federal actions on immigration, this research employs a quantitative approach to determine if states are proposing and enacting laws at a significant level. The study’s findings reveal states with a high population of unauthorized immigrants are creating legislation at a significantly high level and border states are not. © 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: Immigration; Grassroots; Legislation

——— * Created by Ingrid Perez Flores, Department of Political Science, California State Polytechnic University, Pomona for her senior thesis project.

Correspondence concerning this research paper should be addressed to Ingrid Perez Flores, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: ingridperez@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 93–117. © 2018, Political Science Department, California State Polytechnic University, Pomona

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1. Introduction “Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law? Or are we a nation that gives them a chance to make amends, take responsibility, and give their kids a better future?” (Obama, 2014). Former President Barack Obama made these remarks during his speech on immigration. The speech comes a year and a half after the House of Representatives had failed to vote on the Border Security, Economic Opportunity and Immigration Modernization Act of 2013. Since then, there have been other attempts to reform immigration, but each have failed to become law. Again, and again, attempts to reform immigration have failed and concern over the growing immigrant population have increased.

There have been outcries for immigration reform, but it tends to have different meanings. On one hand, this means, “a policy that would grant amnesty for undocumented migrants, including the right to become citizens sometime in the future. On the other hand, it could also mean that a policy to restrict legalization to only a portion of the undocumented migrant population or to a relative few, arguing that it may be time to reduce immigration” (Rodriguez, 2013). With 11 million undocumented immigrants living in the United States, the issue of immigration becomes salient in a period where no major reform has passed to address the growing concerns. When the federal government continuously fails to pass immigration reform, who then faces the repercussions of uncontrolled immigration?

States and local governments do. Considering this, my research question aims to answer; how do state governments react to federal actions on immigration?

Before delving into states’ response to federal actions, it is important to acknowledge the federal government’s responsibility to enforce immigration law.

When looking at the Constitution of the United States, we see Congress is entrusted “To Establish an uniform Rule of Naturalization” (U.S. Const. art. I, § 8). From

here, the federal government obtains its authority over who can earn the pathway to citizenship and when. Now, having this in mind, it is easy to see why comprehensive immigration reform is expected to derive from the federal level. While it is a federal responsibility, the state and local communities experience the ramifications of uncontrolled immigration and find it their obligation to control it.

It is no new phenomenon that states create immigration-related legislation to control immigration and immigrants. This can be demonstrated with Pennsylvania’s Illegal Immigration Relief Act of 2006 that passed in Hazelton, which was legislation that banned landlords from renting to undocumented immigrants and employers from hiring them. This local government sent a clear message on their stance on immigrants by enacting legislation restricting immigrant rights. Again, this legislation came during a time where immigration relief was being discussed on the federal level. While the two may not be correlated, Hazelton ensured their concerns on immigration were met on the local level. Now, my research intends to discover if states are creating immigration-related legislation at a significantly high level in response to federal actions.

This research paper is divided into six parts following the introduction. In the first section, the literature review will cover themes in regard to state and local legislation on immigrants and immigration and their relationship to the federal government. Next, I will present my hypotheses used to answer my research question. After, I analyze a few case studies, comparing the three last major immigration bills in the 21st century and state legislation enacted in those respective years. Then, the methodology used in this research will be explained in more detail along with the discussion of the results.

Lastly, the paper will end with concluding remarks.

2. Literature Review The following literature review examines three recurring themes of research and scholarship on immigration policies and perspectives on a state and

Ingrid Perez Flores

national level. The first category examines national policy that has failed to address growing concerns on immigration. The second category examines state governments taking initiative to respond to growing immigration issues by implementing their own policies.

In the third category, the literature goes more into detail on how states and local governments are filling the void in representation that national policy has failed to do.

Finally, in the fourth category of the literature review, the scholarly work discusses public opinion on undocumented immigrants and immigration policy.

2.1 Failed Efforts to Reform Immigration at the Federal Level This section provides a literature analyses on national immigration policies, dating back to the 1940s. The purpose of reviewing this research is to provide readers with the knowledge of attempts to reform immigration on a national level. Scholars can point out the failures of these policies and how. In fact, these policies created more problems. In order to understand states’ reactions to national policy, it is important to have a broad understanding of the history of immigration reform.

Beginning with one of the earliest attempts to reform immigration, the United States has the termination of the Bracero program, a temporary worker program with Mexico in 1947. The end of this program brought attention to the issue of growing anti-immigrant sentiment. Since then, attempts to reform immigration have carried the same message. Charles B. Keeley (1979) points out several attempts to curtail increasing migration to the United States with “the termination of the Bracero program, the requirement for labor certification beginning in 1965, and the imposition of a ceiling on the Western Hemisphere in fiscal 1969. These all gave rise to illegal migration to the United States from Mexico in particular, but also from other Latin American and Caribbean nations” (259-260). In another attempt to deter migration to the United States, Douglas S. Massey (2013) assesses the effects of turning to restrictionist policies following the passage of the Immigration and Naturalization Act (INA) of 1965 and concludes that the policies were not successful. He notes

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that after 1965, “the United States largely transformed a well-established and circular flow of legal migrants into an equally well-established and circular flow of illegal migrants” (11). Later in his research, Massey explains the increasing immigrant population in the United States created a hostile environment where resentment towards immigrants rose.

The emergence of immigration policy continued into the late 1980s with the Immigration Reform and Control Act (IRCA) of 1986, being legislation that set restrictions on hiring unauthorized workers and established penalties for those who did not adhere to this law. After witnessing the implications of this law, Ray Marshall (2007), former Secretary of Labor, analyzed IRCA in Getting Immigration Right and concluded the legislation failed to accomplish the goals it outlined to achieve. Marshall blamed the failure of ICRA on the inability to create a secure work authorization system, even noting that the Labor Department created a system where a federal agency would be responsible for verifying a worker’s eligibility. This system was ultimately rejected and instead ICRA gave employers the responsibility to verify worker’s authorization, but employers did not enforce this. The reasoning behind this employer behavior, Marshall explains lies in “the relationship between [employers] and undocumented immigrants...once institutionalized, these bonds are very hard to break and tend to exclude natives from the process” (30). Other scholars also recognize IRCA as a failed immigration policy to slow down migration to the United States. If at all, they argued that it increased the flow of immigrants to the country. Like previous attempts at reform, Michael T. Light and Dimeji Togunde (2008) discussed the increased Mexican resentment after the passage of IRCA in The Mexican Immigration Debate: Assimilation and Public Policy.

Light and Dimeji recognized the anti-immigrant sentiment grew with the influx of Mexican immigrants and noted the public will continue to harbor mixed feelings toward Mexican immigration “while politicians will exacerbate and contribute to ‘immigration paranoia’... [and] continue to be a stumbling block to a comprehensive immigration policy reform” (291). Both

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argued that using anti-immigrant rhetoric to gain a following will only hinder the process of achieving comprehensive immigration reform.

Only a decade later, the federal government tackled the issue of immigration again with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. In Out-of-Control Immigration, James Goldsborough (2000) discussed the federal government’s inability to control and regulate immigration patterns. He described the IIRIRA as “toothless as previous laws” since it failed to adopt any recommendations made by the Labor Commission (97).

The Judiciary Committee decided to separate illegal and legal immigration into two separate bills and kept the skills-based immigration at high levels instead of making cuts like the Labor Commission had recommended. Also, Goldsborough warned that if Congress did not take control of the overabundance and continued increase of immigrants, “the field will be clear for the unreasonable solutions advanced by politicians such as Pete Wilson and Patrick Buchanan and discriminatory initiatives like [California] Proposition 187” (101). Proposition 187 was passed in a landslide victory and denied unauthorized immigrants from receiving several social services. This idea provides an interesting perspective on who holds responsibility on immigration matters if the federal government is not successful.

Lastly, to provide a different take on immigration reform, Kait L. Griffith and Tamara L. Lee (2012) argued the importance of viewing immigration advocacy as labor advocacy as many undocumented immigrants suffer from unfair and cruel workplace conditions. They defend this line of thinking by stating, “the close relationship between immigration law and labor issues is apparent given how immigration law, at various historical moments, has acknowledged perceived labor market needs, directly incorporated workplace protections for employees, and focused on the workplace as a primary site for immigration enforcement” (80).

Griffith and Lee implied that understanding how labor policy relates to immigration policy would create

effective legislation that addresses all sides to the immigration debate.

Overall, this research on past immigration policies provides a general sense of how efforts to reform immigration have failed and contributed to the increasing consequences of uncontrolled immigration.

The research above also uniquely correlates unsuccessful immigration reform with growing antiimmigrant sentiment. This rising sentiment could lead to restrictive policies, like Goldsborough (2000) explains that states have done and will continue to do so if uncontrolled immigration goes unresolved. The concept of states taking on the federal responsibility to control immigration is expanded in the next section.

2.2 State Governments’ Response to Immigration For several years now, comprehensive immigration reform has been contested by pro-immigrant and antiimmigrant activists. Those who identify as proimmigrant want to see expansionist policies, where a pathway to citizenship is created for undocumented immigrants living in the United States. Opponents to this idea want to see more restrictionist policies, where stricter border control is attained and criminalizing the status of an undocumented immigrant is possible. While both sides have opposing views, they both can agree that the federal government has failed to resolve the issues that the large unauthorized immigrant population have created. In this section, I examine literature that details various ways that states have reacted to a growing immigrant population and national policy.

The need for immigration reform becomes much more relevant on the state and local level as they directly deal with issues of illegal immigration. In 1994, Texas, California, Florida, and Arizona have sued the federal government over unauthorized immigrant costs as the influx of immigrants took a toll on their social services and public resources (Jorgensen, 1997). These border states felt it was essential to demand compensation from the federal government as they had the largest immigrant population at the time. In Undocumented No More: The Power of State Citizenship, Peter L. Markowitz (2014) discusses how immigrant advocates could use state

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power to implement policy the federal government has failed to pass. He does not disregard the fact that restrictionists, being opposed to granting amnesty for undocumented immigrants, have aggressively used state power to further their agenda. He uses the example of Arizona’s SB 1070, allowing police officers to demand paperwork proving citizenship if they have suspicions that they are undocumented, to show the magnitude of state power. Markowitz adds state governments have the power to portray immigrants in a negative light even when laws like SB 1070 are struck down by the courts.

Similarly, in the Grassroots Reconfiguration of U.S. Immigration Policy, Miriam Wells (2006) states, “although in theory the authority to make and enforce immigration policy is generally reserved to the federal level, in practice the status and treatment of unauthorized immigrants are significantly dependent on the politicaleconomic features of local communities and the concerns and strategies of local actors” (1312). She acknowledges the federal government’s responsibility to legislate over immigration matters but points out that states feel the effects of uncontrolled immigration.

Issues like affordable education for undocumented students has sparked debate within states, leading them to create legislation centered on in-state tuition eligibility. Again, the failure of the federal government to enact comprehensive immigration reform has led states to take immigration policy into their own hands, “In 2008, 1,305 pieces of immigration-related legislation were introduced in 41 state legislatures with 206 bills receiving approval; in 2007, 1,562 pieces of immigration-related legislation were introduced in 50 state legislatures with 240 of these proposals becoming law” (Reich, Gary, Barth, 420). In Divided We Stand: Constitutionalizing Executive Immigration Reform Through Subfederal Regulation, Bianca FigueroaSantana (2015) praises states and local governments for the implementation of President Obama’s Deferred Action for Childhood Arrivals (DACA). She emphasizes that the states’ ability to enforce DACA at the subfederal level disproves the idea that immigration policy is only under the federal government’s responsibility. Una Newton and Brian E. Adams (2009) suggest a majority

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of states create legislation on immigration matters with the intention to cooperate with the federal government not challenge their authority. In contrast, states like Arizona, Oklahoma, Georgia, and Colorado have adopted laws that promote cooperation with federal authorities. While other states have created laws like instate-tuition for undocumented students, they were not enacted with the intention to challenge the federal government. Newton and Adams suggest states taking authority over immigration issues is a positive situation because “it allows states to deal with problems that they face without recourse to a national policy that may not be desired by other states” (410). Opponents of state and local involvement argue state governments run the risk of creating discriminatory legislation against undocumented immigrants.

Opponents to the expanding state power like, Gabriel J. Chin and Marc L. Miller (2011) argue state autonomy over immigration criminal proceedings is unconstitutional as that authority is exclusively reserved for the federal government. Chin and Miller discuss the unconstitutionality of the mirror-image theory, “a theory [that] proposes that states can carry out federal immigration policy by enacting and enforcing state laws that mirror federal statutes” (253). They further explain the theory is widely-accepted, allowing for states to continue to create legislation that allows for the regulation of immigration policy. Adoption of the mirror-image theory concerns Chin and Miller because it is giving states the power to supersede federal law and independently create laws “inconsistent with immigration jurisprudence, law, and policy” (257). In addition, other research believes state and local government should enforce federal immigration policy in the name of national security. One scholar, Daniel Booth (2006) argues, “with a limited force of approximately 2,000 federal agents, the federal government is unable to enforce federal immigration law effectively across the entire country” (1065). He uses the Clear Enforcement for Criminal Alien Removal Act (CLEAR) and Homeland Security Enhancement Act (HSEA) as favorable legislation that would require state and local authorities to cooperate with federal agents in

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enforcing immigration laws. An opposing stance on state and federal cooperation, comes from Congresswoman Nancy Pelosi (D-CA) on the 287(g) amendment to the IIRIRA, which would allow state and local police officers to arrest unauthorized individuals who hold pending deportation orders. She stated, “Congress should ‘allow our state and local law enforcement officials to protect and serve within communities rather [than] to increase the fear’” (2017, 20).

To conclude, this section provides an insight on how states have reacted to federal government actions on immigration. I see states taking responsibility over immigration matters, specifically in how it affects their state directly. It is important to note that states that experience the burden of uncontrolled immigration are leading the way in reforming immigration policy.

2.3 Who Controls Immigration This section goes more in depth on states engaging in political activism on immigration, proving there is a void in representation on the federal level.

In Who Polices Immigration? Amada Armenta (2017) brilliantly points out early on in her research that “states and local governments continue to pass laws that regulate the lives of immigrants, blurring the boundaries between controlling immigrants and controlling immigration” (16). Armenta intentionally brings attention to the fact that states are directly affecting the lives of immigrants through legislation only to indirectly deal with immigration, a federal responsibility. Later in her research, she discusses how states and local governments blamed the federal government for ineffectively enforcing immigration. These communities reacted by adopting “legislation to signal their displeasure or disapproval over the presence of unauthorized immigrants within their boundaries” (33).

Given this, an increase in immigration-related legislation can be attributed to the lack of representation felt by the states on the federal level. In Overcriminalizing Immigration, Jennifer Chacón (2012) argues states attempt to fix immigration matters by using criminal provisions. She notes, “states interested in

controlling migration policy are increasingly using the criminal law as a tool to address the issue of migration, despite the fact that these laws are unlikely to have any positive public safety or security effects” (628).

Interestingly enough, Chacón calls attention to the diminishing agency federal government holds over immigration law as current lawmakers are challenging their authority. This notion has led to a “preemption jurisprudence that is more accepting of subfederal immigration regulations, including regulations that are not completely harmonious with federal regulation” (620-21). To further prove this point, Chacón points to the increasing immigration-related legislation on state and local levels that forces courts to question the extent of the federal government’s responsibility on immigration law (624).

Now, focusing on local governments taking initiative on immigration law, Michal Kohout (2009) in Immigration Politics in California’s Inland Empire calls attention to California’s Inland Empire and their response to national policies. Specifically, Kohout discusses Coachella Valley’s response to H.R. 4437, also known as the Sensenbrenner Bill. Their government decided to pass legislation making Coachella Valley a sanctuary city, and therefore local authorities did not have to comply with the federal government in enforcing federal immigration laws (126). During the city council debate on this piece of legislation, councilors argued the Sensenbrenner Bill would promote racial profiling and residents argued it would hurt the local economy with the labor shortages, divide families, and lead to more discrimination (126-27). Another example of local governments seizing authority over immigration would be the San Bernardino case, in which a hate group called Save Our Souls (SOS) proposed legislation restricting immigrant rights. Restrictions included banning the use of tax dollars to create day-laborer facilities, conducted all business in English, ascribe penalties to landlords who rent to unauthorized immigrants and so on (127).

Although the legislation was not new in nature, Hazelton in Pennsylvania had proposed similar laws, the story was covered nationally, and the media described it as “a

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direct challenge to the federal government’s jurisdiction over immigration enforcement” (127).

In sum, states and local governments have created immigration-related legislation to address their concerns as they feel are not being answered on the federal level.

Some states and local communities in particular have created immigration laws directly responding to unfavorable immigration policies.

2.4 Public Opinion on Immigrants and Immigration Policies In this section of the paper, public opinion on immigrants and immigration policies are taken into consideration when discussing states’ response to national policies. Public opinion tends to influence public policy and therefore, this literature attempts to analyze the extent of said influence. The factors prompting states to react to national policy are explained in more detail below.

In Economic Insecurity, Prejudicial Stereotypes, and Public Opinion on Immigration Policy, the scholars discussed public opinion drastically changing in 1996 as awareness and information on immigration issues increased. They further explain the public connected Hispanics to illegal immigration, perpetuating negative stereotypes, which pushed the creation of restrictionist policy. Peter Burns and James G. Gimpel (2000) challenged the idea that anti-immigrant stems from economic factors alone, and find, “even when economic conditions improve, one cannot count on natives to give immigrants a warm welcome…polls during economic good times show that the public is not very enthusiastic about the prospect of increasing immigration… the effect of economic hardship is to activate prejudices that are latent, adding fuel to the fire of preexisting views” (224). Such scholarly work demonstrates the saliency of geography in the creation of public opinion on immigration policy. Border states regard immigration reform as a major national issue that needs to be addressed. In contrast, non-border states tend to be indifferent about the issue except in times when national media coverage on immigration is in full effect. The

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research shows that “higher volumes of news coverage of immigration lead to a more dramatic shift of opinion among non-border state residents when compared to border state residents” (Dunaway, Abrajano, and Branton 2007, 375). Border states already have higher volumes of news coverage on immigration and are directly affected by the issue, so their residents have already developed an opinion. Marisa Abrajano and Lydia Lundgren (2014) found public opinion on immigration was greatly affected by the passage of 1965 Immigration and Nationality Act, the Immigration Reform and Control Act of 1986, Illegal Immigration and Immigrant Responsibility Act of 1996, and HR 4437, which were legislation intended to criminalize illegal presence in the United States, create stricter border security, and use an employment verification process to name a few of the provisions. Their findings demonstrated “increased attention toward immigration policy carry long-lasting effects for the American public…most of this political attention (and media coverage) has been negative in nature, it has led Whites to harbor more negative sentiments toward immigrants’ roles in society and increase spending on border security, but for Latinos, this attention seems to have had a mobilizing effect over time and stronger feelings of affect toward their own ethnic group” (93).

Michael Rivera (2014) in Immigration, Public Opinion, and State Policy Responsiveness examines the causalities behind the rise of anti-immigrant legislation in states. He finds that public sentiment is a huge driving force behind enacting state laws on immigration. He finds, “in states where the issue of immigration is most prominent in the minds of residents, politicians pay particular attention to public sentiment. On the other hand, when residents do not pay close attention to immigration, public opinion is largely ignored” and “in states where there is a clear legislative majority, the majority party is only responsive to the public opinion of their voters” (92). Jennifer Merolla, S. Karthick Ramakrishnan, and Chris Haynes (2013) conducted research on the effects of using the words “undocumented,” “illegal,” or “unauthorized” when referring to immigrants to see if it would influence the

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way the public perceives immigrants. Also, these scholars wanted to see if framing immigration policy in a certain manner in the media would influence public opinion on the legislation. They found “Americans had far more restrictive preferences when the policy was termed as an amnesty rather than an opportunity to eventually become legal citizens…whether or not amnesty becomes more or less prominent in media coverage will have a substantial effect on whether or not Americans support immigrant legalization” (800). In response to the effect of how immigrants are framed, a possible explanation the authors offered is that “illegal immigrants” is often used in media coverage and therefore the public is not in tune with the use of “undocumented” or “unauthorized”. Francine Segovia and Renatta Defever (2010) conducted research on public opinion of immigrants and immigration and the changes since 1997. They collected data using the Roper Center’s iPoll Databank and found that the public continues to have mixed feelings on immigration but has increasingly negative perceptions of the federal government’s ability to create legislation to reform immigration. Their findings show that in 2006, “27 percent of Americans thought that U.S. immigration policy needed rebuilding. A year later, perhaps as a reflection of the heated immigration policy debates in Congress after the introduction of the Sensenbrenner bill, 49 percent of Americans thought that this should occur” (391). Sergovia and Defever also found that the public did not believe that President Clinton and President Bush were effective in legislating immigration policy. In fact, President Bush received the lowest approval rating among any public officials on dealing with immigration issues.

Overall, this literature depicts public opinion as a significant role in creating immigration policy and is especially salient on state and local levels. The literature emphasizes the importance of wording when discussing immigrants or immigration in the media, as it can influence the perception of the audience. It is also imperative to acknowledge residents of some states hold immigration matters on a higher standard than others, e.g. residents of border states. Having this information,

it is easier to infer certain characteristics of states will influence different responses in regard to national immigration policy.

3. Hypothesis With the introduction of previous failed attempts to reform immigration on the federal level, it is understandable to see why state and local governments found it necessary to intervene. According to the literature review, states and local communities that disapprove of national immigration policies are creating their own immigrant-related legislation in response.

There have been efforts to restrict and contract immigrant rights on the state and local level at an alarmingly higher rate than at the federal level. To test my research question on the states’ response to federal government actions, it was appropriate to test states that are likely to create immigration-related legislation against their counterparts. Therefore, I would test whether all states are reacting in the same manner.

Taking this information into consideration, the following hypotheses are made: H1: There is a difference between states with a high population of undocumented immigrants and states with a low population of undocumented immigrants on proposing or enacting immigration-related legislation in response to the federal government’s actions on immigration.

Conversely, the null hypothesis states: There is not a difference between states with a high population of undocumented immigrants are and states with a low population of undocumented immigrants on proposing or enacting immigration-related legislation in response to the federal government’s actions on immigration.

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H2: There is a difference between traditional border states and non-border states on proposing and enacting immigration-related legislation in response to the federal government’s actions on immigration.

Conversely, the null hypothesis states: There is not a difference between border states and non-border states on proposing or enacting immigration-related legislation in response to the federal government’s actions on immigration.

4. Case Studies In this section, the last three major immigration reforms will be discussed along with states’ response.

The section will cover the Comprehensive Immigration Reform Act of 2006 (S.2611), the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S.744), and the Development, Relief and Education for Alien Minors Act of 2017 (S.1615 or more commonly known as the DREAM Act). The purpose of this section is to help the reader understand why the author chose their methodology discussed in the next section.

4.1 Comprehensive Immigration Reform Act of 2006 and the State of Colorado To begin, the Comprehensive Immigration Reform Act was passed by the Senate in 2006 but never passed in the House of Representatives. Some of the key provisions of the bill included: new border enforcement mechanisms, increased funding for the State Criminal Alien Assistance Program (SCAAP), a new temporary guest worker program, and earned pathways to citizenship (National Conference of State Legislatures).

That year alone, 84 state immigrant-related bills were signed into law, which was more than double the amount in 2005. Colorado was selected for this case study because this state passed the most laws out of all the states, totaling 17 enacted pieces of legislation according

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to the National Conference of State Legislatures.

Colorado passed five laws restricting unauthorized immigrants from employment opportunities. One law in particular, HB 1343 requires contractors to verify their employees’ legal status in order to enter in a contracting agreement with state agencies and prohibits the agencies from engaging in business if the contractor knowingly hires undocumented immigrants (National Conference of State Legislatures). Another law, HB 1015 required employers to withhold 4.63% from the wages of an employee that does not have a social security card, a validated taxpayer ID number, or an IRS-issued taxpayer ID for unauthorized individuals (National Conference of State Legislatures). Concerning law enforcement, Colorado passed a law, SB 90, forbidding state or local government from creating laws that obstruct local authorities from cooperating with federal immigration enforcement officers (National Conference of State Legislatures).

Comparing the restrictive laws against the Comprehensive Immigration Reform Act, I see Colorado’s actions as a form of retaliation. Their creation of HB 1343 openly challenges the idea of a temporary guest worker program since Colorado wants to limit the opportunities for undocumented individuals.

Also, HB 1015 opposes the idea of expanding employment opportunities for undocumented folks and could be a sign of protest against the proposed increase in funding for SCAAP. Again, I see deliberate actions taken by Colorado in response to the proposed national policy. The legislation enacted on the state level sends a clear message to the federal government that they disapprove of their attempts to enforce immigration law.

4.2 Border Security, Economic Opportunity and Immigration Modernization Act of 2013 and the State of California S.744 was legislation intended to increase funding for border security, including an increase in enforcement personnel, creation of a visa program to provide relief for undocumented students and agricultural workers, and an E-verify employment eligibility verification

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program (American Immigration Council). According to American Immigration Council, the bill was passed by the Senate on June 27, 2013, but was never passed by the House of Representatives and therefore died in the 113th Congress. In the same year, 184 immigration-related legislation was enacted on the state level, compared to 156 enacted in 2012 (National Conference of State Legislatures). In this particular case study, I will be analyzing the state of California in relation to the bill proposed in 2013. California was the leading legislative force in expanding immigrant rights that year. While S.744 had progressive provisions, California’s state legislature enacted legislation where they sensed that there was a void in representation. California directly addressed the federal government’s actions in their legislation, A85, prompting state efforts to review funding for Medi-Cal services for undocumented immigrants if federal immigration reform failed to include financial support for public health services (National Conference of State Legislatures). According to the National Conference of State Legislatures, California enacted S666, providing protections for undocumented employees from employers who threaten to reveal their status and license revocation for those who break this law. This law challenged the federal government’s E-verify employment verification program as California expanded employment opportunity and security for undocumented individuals.

Most notably, the state enacted A60, allowing undocumented individuals to apply for a Driver’s License/California Identification card despite not being eligible for a Social Security Number (National Conference of State Legislatures).

immigration-related laws were enacted in 2017, compared to the 98 laws passed in 2016. In this case study, I will be examining the legislation passed in Texas to have a better understanding of measures they took to respond to the federal government. Texas was chosen because it was one of the most active states in 2017, along with California and Illinois (National Conference of State Legislatures). The National Conference of State Legislature reported Texas enacted 61 laws and resolutions. Similar to Colorado in 2003, Texas adopted a law, S 4, banning policies that prohibit local institutions from cooperating with the federal immigration officers in detaining undocumented individuals (National Conference of State Legislatures).

With TX S 4, the state is condemning the protection of sanctuary cities occurring across the country and sending a clear message on their stance on undocumented immigrants. It is important to note that just alone in 2017, 37 states and the District of Columbia proposed 120 pieces of legislation that promoted sanctuary policies (National Conference of State Legislatures). Although Texas did not enact any other laws restricting immigrant rights last year, it was one of only four states that opposed sanctuary policies according to the National Conference of State Legislatures. Meanwhile, the DREAM Act can be classified as an attempt to expand immigrant rights and provide a solution for the large population of undocumented immigrants living in the United States.

Texas’s stance on sanctuary policies sends a clear message to the federal government that they are failing to enforce immigration law.

4.3 Development, Relief, and Education for Alien Minors Act of 2017 and the State of Texas

5. Methodology

The DREAM Act of 2017 intended to provide a pathway to citizenship for undocumented students, Temporary Protected Status (TPS) recipients, and any undocumented folks who meet certain eligibility criteria (National Immigration Law Center). Reviewing the legislation related to immigration and immigrants, the National Conference of State Legislatures reported 206

The methodology used for this thesis employs a quantitative approach. To test my hypothesis against my research question, it seemed appropriate to measure state factors in relation to proposed and enacted immigrationrelated legislation. To simplify the approach, the variables were organized into four groups. Below, you will see four tests being performed on two different state

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factor categories and two types of legislation status. I applied an independent samples t-test to compare the means of proposed legislation between states with a high population of undocumented immigrants and states with a low population of undocumented immigrants to determine whether the difference is statistically significant. To test whether the mean of proposed legislation in border states and non-border states is statistically significant, I employed the independent samples t-test again. Lastly, the same independent samples t-test was applied to both groups mentioned, but this time in regard to the enacted legislation. In addition to the t-tests, I compiled the legislation into bar graphs for a better sense of what the variables look like.

To test this relationship, I collected the number of immigration-related legislation proposed and enacted in 28 states. The 28 states were selected based on the state factors I was measuring: low and high population of undocumented immigrants and border and non-border.

Utilizing the Pew Research Center, I obtained the estimated unauthorized immigrant population by state from the year 2014. From that data, I selected the top ten states with the highest undocumented population and the bottom ten states with the lowest undocumented immigrant population. As such, states with the highest population are as follows in order: California, Texas, Florida, New York, New Jersey, Illinois, Georgia, North Carolina, Arizona, and Virginia. States with the lowest population are as follows in order: Mississippi, New Hampshire, Alaska, Wyoming, South Dakota, Maine, West Virginia, North Dakota, Montana, and Vermont.

Table 1 shows the population total from each of these states. The border states selected were California, Arizona, New Mexico, and Texas because they border Mexico. According to the Pew Research Center, there were 5.6 million undocumented immigrants from Mexico in 2016, making up half of the undocumented population. Therefore, I wanted to compare legislation from these states to legislation in states that do not particularly deal with an influx of immigrants due to proximity. To select non-border states, I used a list randomizer (random.org), listed the 50 states excluding the border states, and chose the top four. The randomizer

generated the states: Colorado, South Carolina, Oregon, and Michigan.

Table 1: Unauthorized Immigrant Population in the US, 2014

California Texas Florida New York New Jersey Illinois Georgia North Carolina Arizona Virginia Mississippi New Hampshire Alaska Wyoming South Dakota Maine West Virginia North Dakota Montana Vermont

2,350,000 1,650,000 850,000 775,000 500,000 450,000 375,000 350,000 325,000 300,000 25,000 10,000 10,000 5,000 5,000 <5,000 <5,000 <5,000 <5,000 <5,000

To gather the legislation needed for my tests, I used the Immigration Enactments Database from the National Conference of State Legislatures. This database includes immigration legislation from the years 2008 to 2017.

The legislation is categorized by 12 topics including Voting, Education, Employment, Health, Public Benefits and so on. For the purposes of my test I selected ‘All Topics’. The database allows you to select the status of the legislation, i.e. ‘Adopted,’ ‘Enacted’, ‘Pending’, and so on. For my test on proposed legislation I selected the option ‘All’ to include all the prospective legislation introduced in state legislatures. For my test on enacted legislation, I selected the option ‘Enacted’. Lastly, I

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chose to view legislation from the past nine years, given there have been three major attempts to reform immigration in the past as noted in the case studies.

To further validate my findings, I conducted the same t-test to all four different groups but took outliers into consideration. The purpose of these additional tests is to make sure that an extreme value in the dataset is not throwing off the analysis and estimates. In order to do this, I determined the outliers and removed them from the dataset to conduct the additional testing. The outliers were selected using interquartile range method. Using the bar graphs, you can see the outliers by observing what the variables look like.

In this quantitative research, the independent variables are the 28 states mentioned earlier. The dependent variable is the legislation enacted and proposed by the state legislatures. In this approach, I am examining the effect the state factors play into the amount of legislation proposed and enacted. Before performing an independent samples t-test, I organized the data by states and legislation and then transferred the information to IBM SPSS Statistics (SPSS), statistical software utilized for research by means of hypothesis testing. With SPSS, I conducted an independent samples t-test between the state factors, i.e. immigrant population and proximity to Mexico, and enacted and proposed legislation in the 28 states. In the next section, this paper will reveal the results and provide an analysis to answer the research question: how have states reacted to the federal governmentâ&#x20AC;&#x2122;s actions on immigration reform?

6. Results In this section of the paper, I present the quantitative findings and the analyses as it corresponds to my research question and hypothesis. Again, my methodology was attempting to prove my hypotheses correct. I hypothesized state factors such as high unauthorized immigrant population and bordering Mexico will increase a stateâ&#x20AC;&#x2122;s likelihood to create immigration-related legislation. Using an independent

samples t-test, I confirmed my first hypothesis in that states with high populations of undocumented immigrants are proposing and enacting legislation at a significantly higher level than states with low populations of undocumented immigrants. Using the same independent samples t-test, I could not confirm my second hypothesis in that border states are proposing and enacting legislation at a significantly higher level than non-border states. Although one of my hypotheses was not proven true with my test, both results convey different but significant interpretations in regard to my research question. This is explained in more detail later in this section. Next, I will present bar graphs that provide a visual comparison between state factors and amount of legislation per state. After, I will go into more specifics regarding the results of the independent samples t-test for the four different groups.

The bar graphs were employed to provide a mathematical representation of the data used in this study. For simplicity purposes, the graphs combined both enacted and proposed immigration-related legislation into clustered bar charts. The first chart represents the states with a high population of immigrants on the x-axis and the amount of proposed and enacted legislation on the y-axis. The second chart compares states with a low population of undocumented immigrants and their proposed and enacted legislation.

The third chart compares border states on their enacted and proposed legislation. Finally, the fourth graph represents the non-border states on the x-axis and the numerical values of the legislation proposed and enacted can be seen on the y-axis.

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Chart 1: Bar Graph (x-axis: State; y-axis: proposed and enacted legislation)

States with a High Population of Undocumented Immigrants 500 400 300 200 100 0

California Texas

Florida New York

New Jersey

Proposed Legislation

Illinois

Georgia

North Arizona Carolina

Enacted Legislation

Chart 2: Bar graph (x-axis: State; y-axis: proposed and enacted legislation)

States with a Low Population of Undocumented Immigrants 45 40 35 30 25 20 15 10 5 0

Proposed Legislation

Enacted Legislation

Virgina

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Chart 3: Bar graph (x-axis: State; y-axis: proposed and enacted legislation)

Border States 500 400 300 200 100 0

California

Texas Proposed Legislation

New Mexico

Arizona

Enacted Legislation

Chart 4: Bar graph (x-axis: State; y-axis: proposed and enacted legislation)

Non-border States 120 100 80 60 40 20 0

Colorado

South Carolina Proposed Legislation

Oregon Enacted Legislation

Michigan

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Table 2. Proposed Immigration-Related Legislation High Population States California Texas Florida New York New Jersey Illinois Georgia North Carolina Arizona Virginia

Proposed Legislation 422 314 73 36 44 212 152 19 81 142

Next, I collected the proposed legislation by ten states with the highest population of unauthorized immigrants and ten states with the lowest populations of unauthorized immigrants. The data gathered from the 20 states can be seen in Table 2. After conducting the t-test on SPSS, I found the t-value for the relationship between undocumented immigrant population and proposed legislation is 3.076. More importantly, the significance value is .007. These results can be viewed in Table 3.

The independent samples t-test measured the difference in means between the two groups of states in proposing legislation on immigration-related issues. To deem a relationship significant the significance value must be less than .05, anything above .05 is not considered

Low Population States

Proposed Legislation

Mississippi New Hampshire Alaska Wyoming South Dakota Maine West Virginia North Dakota Montana Vermont

41 20 9 5 24 27 26 23 11 21

significant. This value dictates the probability that a relationship between two variables is due to chance.

Therefore, there is a .7% chance that the difference between states with a high population of immigrants and states with a low population of immigrants on proposing legislation was random. This, then indicates the relationship is significant. I can note that states with a high undocumented population have a statistically significantly higher mean score on proposing legislation (149.0) than states with a low population (20.70). These values can be seen in Table 4 below.

Table 3. T-Test for States with a High Population of Immigrants and States with a Low Population of Immigrants (Proposed) Value T value 3.076 Significance Value

.007

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Table 4. Descriptive Statistics for States with a High Population of Immigrants and States with a Low Population of Immigrants (Proposed) Variable High Population Low Population

Mean 149.50 20.70

I conducted the same independent samples t-test with the exception of measuring the significance in difference of means in enacted immigration-related legislation, instead of proposed, between the same high population and low population states. Table 5 shows the enacted legislation from each of the 20 states. After performing the test on SPSS, I found the t-value for this relationship is 3.049, and the significance value is .007. These values can be seen in Table 6. Again. Since the significance value is less than .05, the relationship is significant. To interpret the data, I find there is a .7% chance that the

Standard Deviation 132.024 10.404 difference between high population states and low population states on enacting legislation was random.

Therefore, states with a high population of undocumented immigrants have a statistically significant higher mean score on enacting legislation (62.30) than states with a low population (15.00). These values can be seen in Table 7.

Table 5. Enacted Immigration-Related Legislation High Population States California Texas Florida New York New Jersey Illinois Georgia North Carolina Arizona Virginia

Enacted Legislation 189 62 43 35 23 66 46 18 63 78

Low Population States Mississippi New Hampshire Alaska Wyoming South Dakota Maine West Virginia North Dakota Montana Vermont

Enacted Legislation 22 18 6 5 11 25 17 22 8 16

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Table 6. T-Test for States with a High Population of Immigrants and States with a Low Population of Immigrants (Enacted) Value 3.049 .007

T value Significance Value

Table 7. Descriptive Statistics for States with a High Population of Immigrants and States with a Low Population of Immigrants (Enacted) Variable High Population Low Population

Mean 62.20 15.00

Next, I conducted an independent samples t-test to measure the effect of being a border and non-border state on legislation proposed in the last nine years. I tested four border states against four non-border states. Table 8 shows the proposed legislation for each of the 8 states in this test. With SPSS, I calculated the t-value to be 1.638 and the significance value to be .153. These values can be seen in Table 9. Unlike the previous tests, I note that the significance value is less than .05, and therefore I know the relationship is not significant. Interpreting this data, I determined that there is a 15.3% chance that the difference between border states and non-border states

Standard Deviation 48.53 71.134 on proposing immigration-related legislation is random.

From this, I infer that the state factor of bordering Mexico does not affect the amount of immigrationrelated legislation proposed. Descriptive statistics can be seen in Table 10.

Table 8. Proposed Immigration-Related Legislation Border States California Texas New Mexico Arizona

Proposed Legislation 422 314 41 81

Non-Border States Colorado South Carolina Oregon Michigan

Proposed Legislation 62 37 57 63

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Table 9. T-Test for Border States and Non-border States (Proposed) Value 1.638 .153

T value Significance Value

Table 10. Descriptive Statistics for Border States and Non-border States (Proposed) Variable Border Non-border

Mean 214.50 63.00

Standard Deviation 183.38 24.51

In addition to conducting a t-test on proposed legislation, I performed the same test on enacted legislation from border and non-border states. To stay consistent with the data, the same non-border states were used from the list randomizer described earlier. Table 11 shows the enacted legislation for each of the each of the eight states in this test. Our findings were quite similar to those of the proposed legislation tests. Using SPSS, the t-value was calculated to be 1.161 and the significance value to be .290. Table 12 reflects these values. Like the previous test, the significance value is

less than .05, and again, any value less than .05 is considered not significant. Therefore, I can infer the relationship between the state factor and enacted immigration legislation is not significant. Interpreting the significance value, I confirm there is a 29% chance that the difference between border states and non-border states on enacting legislation was random. Similarly, I note that the state factor of being a border state does not affect the amount of immigration-related legislation enacted. Descriptive statistics can be seen in Table 13.

Table 11. Enacted Immigration-Related Legislation Border States California Texas New Mexico Arizona

Enacted Legislation 189 62 14 63

Non-Border States Colorado South Carolina Oregon Michigan

Enacted Legislation 46 22 47 37

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Table 12. T-Test for Border States and Non-border States (Enacted) Value 1.161 .290

T value Significance Value

Table 13. Descriptive Statistics for Border States and Non-border States (Enacted) Variable Border Non-border

Mean 82.00 38.00

Lastly, to confirm the validity of the tests performed, I took into consideration the possibility of outliers. First, to determine if there were any outliers in the data set, an interquartile range (IQR) method was utilized. To find the IQR, first you order the dataset and then find the median. From there, you have two set of numbers, the lower and upper range and from those two groups you find the median in each. The median in the lower range is denoted as đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;1 and the median in the upper range is denoted as đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;3 . Next you subtract đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;1 from đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;3 to calculate the IQR. Then, I use the following formulas to determine a number is an outlier: if it is greater than, đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;3 + 1.5(đ??źđ??źđ??źđ??źđ??źđ??ź), or lower than, đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;1 â&#x2C6;&#x2019; 1.5(đ??źđ??źđ??źđ??źđ??źđ??ź).

This is best explained with an example. To demonstrate, the dataset for enacted legislation in states with a high population of undocumented immigrants will be used. Again, the data can be referenced in Table 5.

Once the data was put in order đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;1 was determined to be 35 and đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;3 was calculated to be 66. With this information, the IQR is calculated to be 31. The following steps walk you through the process of determining whether the

Standard Deviation 74.91 11.58 dataset has any outliers. The same formulas stated earlier are used with the corresponding values: the number is an outlier if it is greater than, đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;3 + 1.5(đ??źđ??źđ??źđ??źđ??źđ??ź) = 66 + 1.5(31) = 112.5 the number is an outlier if it less than, đ?&#x2018;&#x201E;đ?&#x2018;&#x201E;1 â&#x2C6;&#x2019; 1.5(đ??źđ??źđ??źđ??źđ??źđ??ź) = 35 â&#x2C6;&#x2019; 1.5(31) = â&#x2C6;&#x2019;11.5

Referencing our data in Table 5, I note that the value 189 for the state of California is greater than 112.5, therefore deeming it an outlier. I also note there are no values less than -11.5, and therefore confirm there are no outliers in the lower quartile range. In the final part of this section, I perform an independent samples t-test to measure the effect of a high and low population of undocumented immigrants on enacting legislation but modify the dataset to remove the California outlier.

Continuing the search for outliers, the previous interquartile range method was applied to the rest of the datasets in this study. In total seven outlier tests were applied to proposed legislation in states with a high unauthorized population, proposed legislation in states with a low unauthorized population, enacted legislation

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in states with a low unauthorized population, proposed legislation in border states, enacted legislation in border states, proposed legislation in non-border states, and enacted legislation in non-border states. Although some values came close to being an outlier, the seven datasets did not produce any outliers according to the interquartile method. From this, I can infer that three independent samples t-test were not skewed, due to any values in the dataset. Therefore, these further validate the findings.

Lastly, another independent samples t-test was performed to determine whether an outlier skewed the results and analysis. I performed the test on the state factor of unauthorized population and enacted legislation, as per the example stated above. I excluded the value of Californiaâ&#x20AC;&#x2122;s 189 pieces of legislation to determine whether it changed the outcome of the test.

Using SPSS, the t-value was calculated to be 4.820 and the significance value was .000. These values can be seen in Table 14. Interpreting the results, I find there is a 0% chance that the difference between states with a high population of undocumented immigrants and states with a low population of undocumented immigrants in enacting immigration-related legislation is random.

Therefore, I determine the relationship between the state factors and enacted legislation is significant. In this case, with the exclusion of the outlier, states with a high unauthorized population have statistically significant high mean score in enacting legislation (48.22) than states with a low unauthorized population (15.00). To reiterate, this last t-test proves the validity of the previous tests performed because it still resulted in a significant relationship among the variables despite the exclusion of the outlier.

Table 14. T-test for States with a High Population of Immigrants and States with a Low Population of Immigrants (Enacted â&#x20AC;&#x201C; Outlier) Value T value

4.280

Significance Value

.000

In sum, my results garnered key findings that provided an answer to my research question; how have states reacted to the federal governmentâ&#x20AC;&#x2122;s actions on immigration reform? With the independent samples ttests performed, I can conclude certain state factors hold a heavy influence over whether immigration-related legislation is proposed or enacted. I found states with a high undocumented population are creating and enacting legislation on immigrants and immigration at a significantly higher level than other states. Since I did

not find a significant relationship between being a border state or a non-border state and legislation proposed or enacted, I deduce this factor does not hold the same leverage as having an unauthorized population.

Although there is no significant relationship, I can assume these states are still creating immigration-related legislation without encompassing any direct effects of a growing immigrant population. The states bordering Mexico experience the effect of a higher population of undocumented immigrants since individuals who cross

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the border tend to reside in the nearby states. Non-border states do not immediately experience this responsibility but are still creating immigration-related legislation. In combination with the case studies, these tests prove states are increasingly creating legislation to address their concerns on the national level, in regard to immigration.

7. Conclusion Immigration reform has always been a divisive issue, making it difficult for a consensus to be reached on the federal level. With every immigration bill failing to enact into law, the burden of a growing undocumented immigrant populations still falls on the shoulders of the state and local communities. This thesis aimed to answer; how do states react to the federal governmentâ&#x20AC;&#x2122;s actions on immigration?

My scholarly research led me to literature detailing the agency states hold over immigration and immigrants, despite the issue being a federal responsibility. States like Texas, California, Florida, and Arizona sued the federal government over the toll public resources and social services had taken on with the growing immigrant population (Jorgensen 1997). Other scholars point to the danger in allowing states to wield this power by pointing to Arizonaâ&#x20AC;&#x2122;s SB 1070 that allows police officers to demand citizenship documentation under suspicions of unauthorized status (Markowitz 2014). An opposing viewpoint explained state power on immigration-related legislation allows states to create policy according to issues they face rather than adopt federal laws they do not agree with (Newton and Adams 2009). Lastly, some literature points fingers at the federal government for not having the resources and personnel to effectively carry out immigration enforcement laws (Booth 2006).

Before I carried out my methodology, I felt it was appropriate to examine case studies involving the past three major immigration bills proposed at the federal level in relation to state enacted laws on immigration and immigrants. The purpose of this analysis was to provide

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background information on why it was necessary to test the significance of state legislation. Comparing the Comprehensive Immigration Reform Act of 2006 to legislation enacted by Colorado, I find the state deliberately challenged the provisions set in the national policy. Colorado restricted immigrantsâ&#x20AC;&#x2122; employment opportunities the same year the federal government tried to expand them with a temporary guest worker program.

In 2013, a bipartisan bill was passed in the Senate attempting to increase border security and personnel whilst providing immigration relief to individuals who met certain criteria. Interestingly enough, California enacted a law specifically designed to address certain provisions proposed in federal immigration reform. If an immigration bill were to pass providing a path to amnesty but failed to include financial funds for public health services for undocumented immigrants, California would review their funding for Medi-Cal to reconcile that disparity. Lastly, the DREAM Act of 2017 is intended to provide a pathway to citizenship for several different groups of undocumented individuals, including undocumented students and TPS recipients.

Given the divisive nature of immigration reform and the current political climate with an Administration adamantly opposed to amnesty, it was only natural for states to enact their own legislation on the issue. For example, Texas banned sanctuary policies while another 37 states and the District of Columbia enacted several policies supporting sanctuary cities. Again, these case studies provided a foundation for the methodology used to test state responses on federal actions regarding immigration.

Using the literature review, I hypothesized certain state factors influence states to create more immigrationrelated legislation in response to policies made on the federal level. Specifically, I examined proposed and enacted legislation in both high and low undocumented populations in states and border and non-border states.

To test the significance of proposed and enacted legislation, an independent samples test was conducted.

My findings revealed states with a high unauthorized population size do propose and enact legislation at a significantly higher rate. For my second set of tests, I

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found being a border or non-border state does not affect whether a state creates immigration-related legislation or not. While the relationship was found to not be significant, the test proves being a border state does not cause more legislation to be proposed or enacted. Further implying, these states are enacting legislation regardless of proximity to the border. To further validate my findings, I conducted another t-test excluding an outlier in the dataset for enacted legislation for high unauthorized populations. The test was significant proving the data in the first test did not skew the results.

Immigration has been solely the responsibility of the federal government to address, but this understanding has been challenged now more recently than ever before.

As seen in this paper, if the federal government continues to fail to address states’ concerns in immigration reform, states will increasingly create legislation to fill that void in representation. Although states do not have any jurisdiction in reforming immigration, they do have control over policies affecting immigrant lives. Some states, intentionally or unintentionally, create laws intended to affect the social or economic lives of undocumented immigrants but indirectly address immigration. In this study, analyzing state legislation on immigration-related issues reveals certain states (e.g. high unauthorized population) are addressing immigration at a significantly higher level than other states. Taking this into consideration, states are responding to federal actions with their own immigration-related legislation.

8. Works Cited Abrajano, Marisa, and Lydia Lundgren. 2014. “How Watershed Immigration Policies Affect American Public Opinion Over a Lifetime.” International Migration Review 49(1): 70–105.

Armenta, A. 2017. “Who Polices Immigration?”

In Protect, Serve, and Deport: The Rise of Policing as Immigration Enforcement. Oakland, California: University of California Press. 15–35.

American Immigration Council. 2013. “A Guide to S.744: Understanding the 2013 Senate Immigration Bill.” July 10. https://www.americanimmigrationcouncil.org/resea rch/guide-s744-understanding-2013-senateimmigration-bill (March 6, 2018).

Booth, Daniel. 2006. “Federalism on ICE: State and Local Enforcement of Federal Immigration Law.” Harvard Journal of Law and Public Policy 29(3): 1063–83.

Burns, Peter, and James G. Gimpel. 2000. “Economic Insecurity, Prejudicial Stereotypes, and Public Opinion on Immigration Policy.” Political Science Quarterly 115(2): 201–25.

Chacón, J.2012. “Overcriminalizing Immigration.” The Journal of Criminal Law and Criminology (1973), 102(3):613–652.

Chin, Gabriel J, and Marc L Miller. 2011. “The Unconstitutionality of State Regulation of Immigration through Criminal Law.” Duke Law Journal 61(2): 251–314.

Dunaway, Johanna, Marisa Abrajano, and Regina Branton. 2007. “Agenda Setting, Public Opinion, and the Issue of Immigration Reform.” SSRN Electronic Journal.

National Immigration Law Center. “Dream Act 2017: Summary and Answers to Frequently Asked Questions.” (n.d.). Retrieved March 6, 2018.

Figueroa-Santana, Bianca. 2015. “Divided We Stand: Constitutionalizing Executive Immigration Reform Through Subfederal Regulation.” Columbia Law Review 115(8): 2219–64.

Finch, Wilbur A. 1990. “The Immigration Reform and Control Act of 1986: A Preliminary Assessment.”

Social Service Review 64(2): 244-60.

Goldsborough, James. 2000. “Out-of-Control Immigration.” Foreign Affairs 79(5): 89–101.

Griffith, Kati, and Tamara Lee. 2012. “Immigration Advocacy as Labor Advocacy.” Berkeley Journal of Employment and Labor Law 33(1): 73–117.

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Jorgensen, Jay T. 1997. “The Practical Power of State and Local Governments to Enforce Federal Immigration Laws.” Brigham Young University Law Review: 899–942.

Keely, Charles B. 1979. “The Development of U.S. Immigration Policy Since 1965.” Journal of International Affairs 33(2): 249–63.

Kohout, M. 2009. “Immigration Politics in California's Inland Empire.” Yearbook of the Association of Pacific Coast Geographers, 71: 120-143.

Light, Michael T, and Dimeji Togunde. 2008. “The Mexican Immigration Debate: Assimilation and Public Policy.” International Review of Modern Sociology 34(2): 279–93.

Markowitz, Peter L. 2014. “Undocumented No More: The Power of State Citizenship.” SSRN Electronic Journal.

Marshall, Ray. 2007. “Getting Immigration Reform Right.” Challenge 50(4): 26–48.

Massey, Douglas S. 2013. “Americas Immigration Policy Fiasco: Learning from Past Mistakes.” Daedalus 142(3): 5–15.

Merolla, Jennifer, S Karthick Ramakrishnan, and Chris Haynes. 2013. ““Illegal,” “Undocumented,” or “Unauthorized”: Equivalency Frames, Issue Frames, and Public Opinion on Immigration.” Perspectives on Politics 11(3): 789– 807.

National Conference of State Legislatures. 2006. “2006 State Legislation Related to Immigration: Enacted and Vetoed.” October 31. http://www.ncsl.org/research/immigration/immigra nt-policy-2006-state-legislation-related-t.aspx (March 5, 2018).

National Conference of State Legislatures. 2014. “2013 Immigration Report.” January 20. http://www.ncsl.org/research/immigration/2013immigration-report.aspx (March 5, 2018).

National Conference of State Legislatures. 2006.

“Comprehensive Immigration Reform Act of 2006 S. 2611.” http://www.ncsl.org/research/immigration/compreh ensive-immigrationreform-act-of-2006-summ.aspx (March 5, 2018).

National Conference of State Legislatures. 2018. “2017 Immigration Report.” February 12. http://www.ncsl.org/research/immigration/2017immigration-report.aspx (March 5, 2018).

National Conference of State Legislatures. 2017. “State Laws Related to Immigration and Immigrants.”

August 6. http://www.ncsl.org/research/immigration/statelaws-related-to-immigration-and-immigrants.aspx (December 3, 2017).

Newton, Una and Brian E Adams. 2009. “State Immigration Policies: Innovation, Cooperation, or Conflict.” Publius: The Journal of Federalism 39(3): 408–31.

Obama, Barack. (2014). President Obama’s Speech on Immigration. [Transcript]. Retrieved from http://wwww.washingtonpost.com Pew Research Center. 2016. “U.S. Unauthorized Immigration Population Estimates.” November 3. http://www.pewhispanic.org/interactives/unauthoriz ed-immigrants/ (March 1, 2018).

Reich, Gary, and Jay Barth. 2010. “Educating Citizens or Defying Federal Authority? A Comparative Study of In-State Tuition for Undocumented Students.” Policy Studies Journal 38(3): 419–45.

Rivera, Michael. 2014. “Immigration, Public Opinion, and State Policy Responsiveness.” ProQuest Dissertations and Theses: 1–149.

Rodríguez, Nestor. 2013. “Immigration Reform.”

Contexts 12(2): 10-11.

Segovia, F., and R. Defever. 2010. “The polls--Trends: American Public Opinion on Immigrants and Immigration Policy.” Public Opinion Quarterly 74(2): 375–94.

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Trump, Donald. 2015. Republican Presidential Debate.

Milwaukee, WI: Milwaukee Theatre.

U.S. Const. art. I, § 8

Wells, Miriam J. 2006. “The Grassroots Reconfiguration of U.S. Immigration Policy.” International Migration Review 38(4): 1308–47

Ingrid Perez Flores

Ingrid Perez Flores is a 4th year Political Science Major with a Minor in Economics and an emphasis in American Politics. Her expected graduation date is June 2018. She plans to go to law school to pursue a career as a lawyer specializing in immigrant justice.

Email: ingridperez@cpp.edu

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AMERICAN GOVERNMENT Section C

American College Students Are No Longer Guaranteed Supporters of Civil Liberties Trevor G. Samaha * Abstract This paper examines the support for civil liberties by college students in the United States, specifically the areas of free speech, privacy, and gun ownership. The paper will examine what factors determine whether or not students support civil liberties.

Using both historic and contemporary sources, this paper identifies what civil liberties are and how they are defined. This paper provides an up-to-date look at where civil liberties stand in today’s post-9/11, technological, socially dynamic world. Students, in general, are somewhat supportive of privacy rights, somewhat supportive of free speech, and not supportive of gun ownership.

There are no clear demographic or socioeconomic factors that determines whether or not a student is in favor of restrictions on civil liberties. Rather, a college student’s support, or lack thereof, for civil liberties is much better explained by factors such as political ideology, political party affiliation, and patriotism; there is a statistically significant relationship between students who self-identify as patriotic and those who are in favor of warrantless searches. While not indicative of the future, the results show the startling reality that college campuses in the United States are no longer the sanctuaries for civil liberties that they once were throughout the Civil Rights, the Vietnam War, and the 1990s. © 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: Civil Liberties; Free Speech; Gun Ownership; Privacy

——— * Created by Trevor G. Samaha, Department of Political Science, California State Polytechnic University, Pomona for his senior thesis project.

Correspondence concerning this research paper should be addressed to Trevor G. Samaha, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: trevorsamaha@gmail.com Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 118–165. © 2018, Political Science Department, California State Polytechnic University, Pomona

Trevor G. Samaha

1. Introduction Regardless of the political polarization in the United States, it has always seemed that there are certain things that all Americans could agree on. Traditionally, supporting civil liberties was one of these things.

However, in today’s modern society, where norms and feelings towards certain things change with each new trending YouTube video, things that were once a sure bet, are now very uncertain. Today, because of both social media and news media, there are many people in society who openly and actively support restrictions on civil liberties. Even more interestingly, there does not seem to be an easy way to predict who is likely to support or oppose restrictions on civil liberties. This thesis project will attempt to solve this problem. I will address the question: what factors determine whether or not an individual is likely to support restrictions on individual liberties? Additionally, what factors determine which individual liberties, if any, an individual is in favor of restricting?

This research question is important to address. Many people view the political spectrum as a single axis model with “right” being conservative and “left” being liberal.

In general people tend to equate conservatives, specifically Republicans in the United States, with support for fewer restrictions on civil liberties, and people tend to equate liberals, specifically Democrats in the United States, with being in favor of more restrictions on civil liberties. I would argue, however, that both Republicans and Democrats are in favor of restricting civil liberties, but in different areas. I do not believe that the political spectrum is a single axis, it can be better explained using the Nolan Chart (see Figure 1).

Democrats tend to support more restrictions as far as the ——— 1 There are many articles written about the placement of certain political elites on the Nolan Chart, but there are very few that use a quantitative approach in an attempt to predict the placement of ordinary individuals on the Nolan Chart. Especially recently there have been more and more articles written about authoritarianism versus libertarianism, but these articles as well tend to be case studies of elites rather than quantitative analysis of ordinary people.

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right to free speech, the right to self-defense, and the right to bear arms whereas Republicans tend to support more restrictions on the right to privacy, the right to freedom of religion, and the right to body autonomy.

Both major parties in the United States support restrictions on civil liberties, but not all people do. I will study what factors determine whether or not an individual favor more restrictions on civil liberties as well as what factors determine which areas an individual favors restrictions on civil liberties, if at all.

This research question is worth studying because the factors that determine whether or not a person is more likely to vote Republican or Democrat (horizontal placement on the Nolan Chart) have been studied exhaustively, but there is not nearly as much research to analyze what factors determine an individual’s vertical placement on the Nolan Chart 1. I would argue that if a person does not support any restrictions on civil liberties they would be placed very high on the Nolan Chart and an individual who supports many restrictions would fall low on the chart. Simply put, it is worth studying what factors cause an individual to be more of a statist or authoritarian versus what factors cause an individual to be more of a classical liberal or libertarian.

Given the current political polarization in the United States, there are an increasing number of young voters who are no longer drawn to either of the two major parties, as well as many Democrats dissatisfied with the Democratic Party and many Republicans dissatisfied with the Republican Party. Third parties are becoming increasing attractive, especially to young voters who do not have previous party loyalty. Because third parties 2, other than single-issue parties 3, tend to be more

Such as the Socialist Party, Libertarian Party, Communist Party, and Constitution Party.

3 Such as the Prohibition Party, Green Party, Alaskan Independence Party, etc.

2

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ideological 4 about the protection of civil liberties and the specific roles of government, they tend to fall either high or low on the Nolan Chart.

will talk about the methodology and the research design that I will use. I will then discuss the findings of my research. Finally, I will offer a conclusion based on the findings. Additionally, there will be an appendix that will contain relevant supplementary information.

2. Literature Review Throughout the course of researching and reading about the topic of civil liberties, I have discovered that there have been hundreds of books written on the subject and thousands of journal articles written on the subject.

Unfortunately, for the scope of my research question, the vast majority of books and peer-reviewed journal articles on the topic of civil liberties discuss one or more civil liberties in great detail but do not discuss what factors determine whether or not an individual is likely to support restrictions on individual liberties. Instead, most of the scholarship relating to civil liberties deals with making a case either for or against restricting certain civil liberties. Some sources do go into some detail related to who supports restrictions on civil liberties, but not the factors that determine their support.

2.1 What are Civil Liberties?

Figure 1: Nolan Chart I will discuss the previous research that has been conducted on this topic by completing a literature review of relevant sources. I will then hypothesize about what I think I will find after conducting my research. Next, I ——— 4 One may argue that the two major parties are very ideological but I do not think this is the case; I would argue that they are indeed polarized, but not because of ideology. I think this is evident by the simple fact that a Democrat in office will propose a piece of legislation and other Democrats will love it and Republicans will hate it. Then a Republican will propose a nearly identical piece of legislation a legislation and Democrats will hate it and Republicans will love it. Regarding the two major parties, I believe partisanship is much more at fault for polarization than ideology.

In order to discuss civil liberties in any aspect, let alone in the context of academic research, the term must first be defined. Before any substantive progress can be made towards studying civil liberties, it must be determined to what extent scholars agree on the definition. Various scholars and political thinkers throughout history have contributed their own definitions of the term, “civil liberties.” Notable

Trevor G. Samaha

examples of political theorists who differ on their ideas of civil liberties include Immanuel Kant, John Locke, Thomas Jefferson, and Thomas Paine (Kramnick & Lowi, 2009). Because this paper is focusing on American Politics, I will first explore the thoughts of the Founders as well as those who influenced the Founders to see what their ideas of civil liberties were.

John Locke described liberty, specifically civil liberty, in A Letter Concerning Toleration (1689). John Locke said that being able to choose and practice any religion freely is the epitome of civil liberty. He also notes that it is important the same liberties afforded to those who believe in god be protected for those who are atheists (Locke, 1689). Another pre-revolution writing that offers a definition of civil liberties is “An Arrow Against All Tyrants” by Richard Overton in 1646.

Overton writes, “No man hath power over my rights and liberties, and I over no man’s; I may be but an individual, enjoy myself and my self-propriety, and may write myself no more than myself, or presume any further; if I do, I am an encroacher and an invader upon another man’s right, to which I have no right” (1646). In “An Arrow Against All Tyrants,” Overton talks about civil liberties in the context that people can do as they please without the government interfering as long as their actions do not interfere with someone else attempting to carry out their own actions. This same, or very similar, notion of civil liberties is later professed by scholars such as Immanuel Kant, Ayn Rand, Herbert Spencer, and Murray Rothbard.

Kant’s idea of civil liberty contrasts sharply with Locke, Jefferson, and Paine, but even among the latter three, there were significant disagreements. According to Daniel A. Bell, from the University of Hong Kong, civil liberties in the United States are comprised of civil and political rights, but not social and economic rights (1999). Civil liberties in the United States, according to Bell, do not protect individuals from economic forces or social forces, but only from governmental force. This is consistent with the ideas of Locke, Jefferson, and Paine regarding civil liberty. They all believed that a democratic form of government was the best choice to ensure individual liberty (Locke, 1689; Kramnick &

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Lowi, 2009). On the other hand, Kant believed that democracy would be the type of government that would most significantly infringe on individual civil liberties (1997).

During the American Revolution and the years leading up to it, the issue of civil liberties was thrust to the forefront of society. The Declaration of Independence itself was and is a very influential document when it comes to civil liberties. The significance of the Declaration of Independence as far as civil liberties are concerned is in the wording. When Thomas Jefferson wrote the Declaration of Independence, he included the famous statement about “inalienable rights” including “Life, Liberty, and the Pursuit of Happiness.” Jefferson specifically included liberty as an inalienable or natural right, rather than naming them separately (Pound, 1963: p. 74-5). This is extremely significant because it is an example of (civil) liberty being included under the umbrella of natural rights rather than as a separate idea. The implications of this distinction is of great importance because it means that the government is not necessary to provide the people with civil liberties; civil liberties are something that each and every person is born with rather than those liberties being granted by a governing authority (Becker, 1949: p. 81). If civil liberties are not granted by a governing authority, it also means that a governing authority cannot take them away. This is explicitly contradictory to Mill’s idea of civil liberty (Dworkin, 1997). John Stuart Mill, a renowned utilitarian and classical liberal, believed in individual liberty through what he called, “sovereignty of the individual” (Dworkin 1997). However, Mill also believed that a utilitarian state had the moral and legal authority to, in some cases, violate civil liberties for the greater good of society (Dworkin 1997). Shortly after independence was declared by the United States, the individual states started writing their own constitutions, many of which contained sections specific to civil liberties similar to the Bill of Rights in the later United States Constitution. The following is an excerpt from the Virginia Constitution’s Declaration of Rights: “That all men are by nature equally free and independent, and have certain inherent

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rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” (Heyman, 1991). Later, the United States Constitution enumerated certain civil liberties in the Bill of Rights. Something that is often overlooked in the Bill of Rights is the specific wording. For example, the First Amendment says, “the freedom of speech,” the Second Amendment says, “the right to bear arms.” This distinction means that the Constitution is not granting these civil liberties to the people, but rather they are liberties that each individual is born with. The Constitution states that the natural rights and civil liberties of the people will not be infringed upon; it does not state that the Constitution is the reason that people have these rights. Another important note on the wording of the Bill of Rights is that they never refer to citizens, men, or Americans, they all refer to people. This clearly demonstrates that civil liberties apply to everyone, not just American citizens or males.

The Constitution of the United States specifically uses the word liberty multiple times throughout the preamble and in the Amendments (Konvitz, 1967).

Konvitz argues that the right to privacy is the most fundamental of all civil liberties. Justice Brandeis, a former Supreme Court Justice penned the opinion in Olmstead v. United States, which argued for the constitutional right of privacy (Konvitz, 1967).

Specifically Justice Brandeis said, “[The Founders] sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. [The Founders] conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized man” (Konvitz, 1967). Konvitz further explains how the right to privacy was further confirmed with the Griswold v. Connecticut decision. The Supreme Court determined that, even though the United States Constitution does not explicitly protect the people’s right to privacy, the enumerated rights in the First, Third, Fourth, and Ninth Amendments are not possible to guarantee without a right to privacy

and therefore the right must exist (1967). In regards to privacy, Konvitz concludes, “Then, too, the freedoms expressly stated in the Constitution may be interpreted as, exemplifications or expressions of even more fundamental values. Thus, privacy is more fundamental than the First Amendment freedoms” (1967).

2.2 Why People Favor Restrictions on Civil Liberties If everyone had attitudes similar to those of the Founders who valued civil liberties above almost all else, there would be no need to conduct the research associated with this thesis project; if that were the case, there would not be any subjects to study who support restrictions on civil liberties. However, as is abundantly clear, that is not the case. There are many people from various political, racial and ethnic, socioeconomic, geographic, and religious backgrounds who support restrictions on civil liberties. As mentioned earlier, there is not much scholarship on what factors determine why people support restrictions on civil liberties, but there is a significant amount of research literature on why people support restrictions on civil liberties.

One of the many reasons people may support restrictions on civil liberties is due to national security concerns. As we saw in the tumultuous 2016 Presidential Election Republican Primary debates, the argument of national security versus civil liberties was highlighted in a heated exchange between the then Governor of New Jersey, Chris Christy, and Congressman Rand Paul.

Governor Christy was speaking out in favor of the USA PATRIOT Act and Congressman Paul was speaking out in favor of the Fourth Amendment. Governor Christy was making the point that in order to defend the United States against the ever-present threat of terrorism, there are certain civil liberties that all Americans must agree to give up ensuring national safety. He used the argument that if you are doing nothing wrong you should have nothing to hide. On the other side, Congressman Paul argued that the policies implemented in conjunction with the USA PATRIOT Act have not been effective at all at locating or capturing terrorists and that Americans should not have to give up their Fourth Amendment

Trevor G. Samaha

guaranteed civil liberties in the name of national security. Similarly, there are scholars on both sides of this argument as well. In Its a Free Country: Personal Freedom in America after September 11, Goldberg, Goldberg, and Greenwald compile “stories, legal arguments, and historical reminders” about civil liberties (2002). They use a combination of anecdotal examples, legal precedent, and the lessons of history to argue the opinion that the United States should not give up liberties due to tragedy. Similarly, in The Enemy Within, Stephen Schulhofer takes a hardline approach against suspending or eliminating any civil liberties (2002). In a profound statement, Schulhofer states: September 11 was an extraordinary crisis, warranting emergency measures of extraordinary scope. But there is, unfortunately, no reason to believe that the threat of terrorism will recede any time soon. More likely, the “emergency” will be with us through several future presidential administrations. Thus, the enhanced size and prerogatives of the federal law enforcement establishment may not be reversed in our lifetimes. Along with concern for our safety and security, we must devote our utmost attention to the powers of the government under which we live over that very long term (2002, 68).

On the other hand, some scholars believe that the government needs the proper tools to be able to defend the country against terrorists and that our government has a moral obligation not to abuse their power (K. Martin 2002, 7; Stone 2007). Some scholars even take it a step further and assert: “The question is not whether we should increase governmental power to meet such dangers. The question is how much” (Taylor 2003).

Taylor goes even further by saying, “It is senseless to adhere to overly broad restrictions imposed by decadesold civil-liberties rules when confronting the threat of unprecedented carnage at the hands of modern terrorists” (2003). Russell Hardin explains how people are often willing to give up certain privacies in order to feel safer (2004). This attitude is especially prevalent in the post 9/11 era where the thought of terror attacks are far more common than they once were (2004). Interestingly,

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Hardin also explains that the actual threat of terrorism is statistically insignificant, but because so many people perceive it as a real and present threat, they are willing to give up certain civil liberties to feel safer.

Another reason that people may support restrictions on civil liberties is the idea of utilitarianism or doing the greatest good for the greatest number of people. In their book, Shlapentokh and Beasley cite eight specific areas where restricting civil liberties serves the greater good (2013). Restrictions on freedoms in the areas of “acting bases on religious beliefs, purchasing and consuming sexual services, abstaining from medical treatment, receiving medicine and medical treatments, creative noise, be unencumbered by noise, speak where, when, and how one wishes, and behave as one wishes in public” are some examples of how restricting civil liberties can benefit the greatest number of people (Shlapentokh and Beasley, 2013: p. 60). Some scholars also use the example of restricting the use of drugs as an example of benefiting the greater good (Fellman, 1959: p. 28). However not all scholars agree with this idea.

Michael Huemer contends that the individual right to own and carry a firearm “is not overridden by utilitarian considerations” (2003: p. 297). He also argues that the harms of private gun ownership are less than the benefits it provides meaning that the utilitarian would ultimately argue in favor of gun rights (Huemer, 2003).

A third reason that people might support restrictions on civil liberties, in particular free speech, is to protect the public from obscenity. As Laura M. Weinrib explains, prior to 1930 and the United States v. Dennett Supreme Court case, sex education pamphlets were not allowed to be distributed via mail because they were considered obscene (2012). By today’s standards, it makes very little sense that something of an educational nature that is non-explicit was once considered obscene.

However, there are still obscenity laws today that restrict free speech. Many people believe that these laws are necessary to protect people from things they do not want to see, hear, or read (Weinrib, 2012). Another reason that people might support restrictions on free speech is due to heightened sensitivities during a time of war or during a perceived threat. This occurred during World War I,

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World War II, and during the “Red Scare” (Weinrib 2012). During World War II and the Red Scare, the threshold for what was considered illegal speech was much lower (Weinrib 2012).

2.3 Why People Are Against Restricting Civil Liberties For every person who supports restrictions on civil liberties, there is seemingly another who is opposed to restricting those same civil liberties. The people who are opposed to restricting civil liberties come from identical political, racial and ethnic, socioeconomic, geographic, and religious backgrounds as those who support restrictions on civil liberties. There are many different reasons for being opposed to restricting civil liberties, most of which have already been covered by looking at the historical political thought relating to civil liberty.

One reason that people are against restricting civil liberties is the idea of natural or inalienable rights. An example of this is a study involving political activists and their support level for civil liberties (Green and Guth, 1991). The study determined the level of support for various civil liberties indirectly by determining the individual’s level of support for other things that related to civil liberties such as support for gay rights or support for gun control (Green and Guth, 1991). Similarly, the study that Charles Helwig conducted in 1995 yielded results that suggested adolescents and young adults view the civil liberties protected by the First Amendment, notably the freedom of speech and the freedom of religion, as natural or inalienable rights. Interestingly the reasoning that the participants used to reach each conclusion was different (Helwig, 1995).

Another reason that people are against restricting civil liberties is the idea of a slippery slope. This is perhaps the most common and widely used reasoning for opposing restrictions on civil liberties. Many people believe that once the government has the authority, either by giving itself the authority or by gaining authority though democratic means, to restrict civil liberties, they will have the de facto power to restrict liberties and rights in any way. For many people, such as Daniel Karon, author of “Civil Rights: Suspicionless

Strip Searches—What's Next?” the idea of government being authorized to limit civil liberties is a severe violation of not only the Constitution, but civil liberties and civil rights as well (2013). The title of the work even lends itself to helping make the point the article is trying to make; it started with searches after “reasonable suspicion,” now it has evolved to suspicionless searches.

Maybe the next step will be scheduled searches on a regular basis. Another study that falls into the slippery slope category (although it can also be included as a counterpoint to the national security category) is, “The Ideological Effects of Framing Threat on Immigration and Civil Liberties” conducted by Gallya Lahav and Marie Courtemanche (2012). Because immigration policy is largely based on a perceived threat from immigrants, once immigration is restricted, it becomes very easy for government to further restrict immigration with little-to-no objection; we have seen this play out numerous times throughout American history (Lahav and Courtemanche, 2012). For many people, such as Eric Foner, author of “American Freedom in a Global Age”, the idea of government being authorized to limit civil liberties is a severe concern that Americans must be aware of (2001). He argues that in an increasingly globalized world, citizens it the United States should embrace globalization, but be very cautious not to sacrifice civil liberties and political freedoms to conform with international pressures to adopt policies that violate individual freedom (2001).

2.4 Shortcomings of the Literature It is rather difficult to criticize such excellent scholarship, and I guess I am not criticizing the scholarship itself, but rather expressing my frustration with the lack of scholarship in the particular area that I am studying and have spent so much time reading about.

There is a great deal of literature pertaining to civil liberties, and there is a great deal of literature on authoritarianism versus libertarianism, but there is not very much research at all that relates civil liberties to the authoritarian libertarian dichotomy. Unfortunately, for me, there are many articles about people supporting or

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opposing restrictions on civil liberties for one reason or another, but most deal with anecdotal examples rather than quantitative data. For example, Lawrence Gostin writes about his transformation from a libertarian whose career revolved around defending civil liberties into a sanitarian who supports a myriad of government regulation and control (2007). While this case may provide insight into why one individual supports restrictions on civil liberties, one person is hardly a representative sample. Overall the greatest weakness or shortfall in the available scholarship is a lack of quantitative analysis.

2.5 Strength of the Literature There is an exhaustive amount of literature, both recent and historical on civil liberties. Sometimes it is said that when there is quantity, quality is sacrificed; this is not the case when it comes to civil liberties scholarship. There is an enormous amount of quality sources available on the subject of civil liberties.

Specifically for this thesis project the strongest source I was able to find is, “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America” (Davis and Silver 2004). Another strong article is “Civil Liberties in the Era of Mass Terrorism” (Hardin 2004). This research contains evidence that is very relevant to my research question and should be useful to my thesis. These articles examine who supports restrictions on the right privacy and the Fourth Amendment in post 9/11 America. These articles also look into why people support or oppose these restrictions; these in particular should be useful to my thesis.

2.6 Definition of Civil Liberties As a thorough review of the literature shows, there are many different opinions on what the true definition of individual or civil liberties is. For the purpose of this paper, it is necessary to establish a definition that will be used throughout, to maintain consistency. The following definition will be used: Civil Liberties can be defined as individual rights protected by natural law from arbitrary

government interference, especially guaranteed by the Bill of Rights.

those

rights

3. Hypothesis Hypothesis 1 People who are older are more likely to support restrictions on freedom of speech than people who are younger. Multiple studies have shown that people who are more active in politics are more likely to support unrestricted, or nearly unrestricted freedom of speech (Guth and Green, 1991; Helwig 1995). However, many of these studies were conducted over twenty years ago and the political climate in the United States has significantly changed since then. I think that the older generation of political activists probably still support less restrictions on freedom of speech, but I believe that the younger generation of political activists, in general, probably support more restrictions on freedom of speech. I am basing this prediction on the recent movements we have seen to ban “hate speech” and other forms of controversial speech. While the attitudes of political activists are not identical to their non-activist peers, a general similarity exists (Guth and Green, 1991).

Additionally, I believe that there will be a compelling difference between the support for free speech on college campuses in the 1980s and the support for free speech on college campuses today. I believe far more college students today will be in favor of restricting free speech than college students during the 1980s.

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Hypothesis 2 People who self-identify as patriotic are more likely to support restrictions on the Fourth Amendment 5 than those who self-identify as not patriotic. Specifically, I think that people who identify as patriotic will be more likely to support warrantless searches and warrantless gathering of phone records, emails, text messages, and other private electronic data. While on the surface it would seem like the patriotic thing to do would be to support the Constitution, or at least that is what many children across the Unites States are taught, the scholarship seems to disagree. Many of the scholars claim to be representing the “patriotic” view while simultaneously advocating in favor of the USA PATRIOT Act, an act that severely restricts the Fourth Amendment (Taylor, 2003; Martin 2002; Stone, 2007).

I believe that peoples’ self-identification as patriotic will be similar to the views of the scholars.

Hypothesis 3 People who believe that human nature is generally good are less likely to support restrictions on gun control than those who believe human nature is generally evil.

Additionally, those who view human nature as bad will be more likely to support a gun ban than those who view human nature as good. Michael Huemer argues strongly in opposition of restricting gun rights (2003). The premise of Huemer’s argument assumes that humans are generally good. Specifically he states, “I assume that individuals have at least some moral rights that are logically prior to the laws enacted by the state, and that these rights place restrictions on what sort of laws ought to be” (2003). I hypothesize that most people who feel similarly, meaning they believe that human nature is generally good or that they believe that people are moral beings, will support gun rights and be in opposition to ——— 5 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

gun control. Conversely, I believe that people who believe that human nature is generally evil or that people do not naturally have morals, will be more likely to support restrictions on gun ownership.

4. Methodology The research for this project was twofold. First, I administered an original survey on campus to Cal Poly Pomona students. Second, I administered the same original survey to my Facebook friends. Because my hypotheses are based on the opinions of the public, I felt that a public opinion survey would provide valuable insight into the opinions of people regarding the specific areas relevant to this project. The analytical part of the research utilized data from both of the surveys. The data gathered from the surveys I conducted was analyzed statistically using IBM SPSS. 4.1 Survey Design The survey itself was designed to assess respondents’ opinions on the matters relevant to the research question.

Specifically, I asked about people’s feelings and attitudes towards free speech, privacy, and firearms. I also asked about their feelings towards warrantless searches, warrantless data gathering, patriotism, and human nature. The survey also contained general questions regarding demographics such as age, racial and ethnic background, education, and political ideology. The survey was brief, only 16 questions long, in an attempt to be courteous to those who were willing to take the time to complete it. It was designed to take respondents no more than three to five minutes to complete the survey. The survey was designed to take up no more than one piece of paper in order to facilitate easy administration. I attempted to reach 50 respondents for

Trevor G. Samaha

the on-campus survey and I attempted to get as many responses as possible for the Facebook survey.

Regarding the specific questions, the first question was a fill-in-the-blank asking respondents to identify their age. This was the only fill-in-the-blank question on the survey; the rest were multiple choice. The next question asked respondents to identify whether or not they are currently a college student, and if so whether or not they attend Cal Poly Pomona. Next the survey asked about the respondents highest level of formal education.

I gave options that allowed respondents who are currently attending college to indicate how long they have been in college. Next, the survey asked respondents to choose from a selection of races and/or ethnicities. I purposefully omitted â&#x20AC;&#x153;none of the aboveâ&#x20AC;? as an answer choice to force respondents to choose an option that most closely describes them. The survey then asked respondents to choose whether or not they consider themselves to be political activists. Using a scale ranging from strongly agree to strongly disagree, the survey asked how respondents feel about warrantless searches.

The next question asked respondents to choose their political ideology. Next, the survey used the same strongly agree to strongly disagree scale to ask respondents how patriotic they consider themselves to be. Then, without directly asking, the survey attempted to gauge the respondentsâ&#x20AC;&#x2122; feelings on human nature by asking what they believe a hypothetical person would do if given too much change at a grocery store. After that, the survey directly asked respondents if they believe humans are generally good or generally bad. The survey then again used the same strongly agree to strongly disagree scale to ask respondents how they feel about data gathering. Next, the survey asked about gun control by providing various levels of firearm regulation so respondents could choose the letter which most closely reflects their opinions on gun control. Similarly, the survey then asked about free speech by providing various levels of free speech restrictions for respondents to choose from. The next question was a yes or no question asking whether or not individuals should be legally allowed to own firearms. Then the survey asked about guest speakers on college campuses. Finally, the

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survey asked if the respondent is patriotic in the form of a yes or no question. The complete survey is attached in the appendix to this thesis.

Both the question about free speech and the question about speakers on campus were used as dependent variables for testing my first hypothesis: people who are older are more likely to support restrictions on freedom of speech than people who are younger. Obviously the age question was used as the independent variable to test this hypothesis. Additionally, I used the question about political activism as an independent variable to test this hypothesis.

For my second hypothesis: people who self-identify as patriotic are more likely to support restrictions on the Fourth Amendment than those who self-identify as not patriotic, I used the question about warrantless searches and the question about data gathering as dependent variables. For this hypothesis, I used the two questions about privacy as independent variables. I also used the question about political ideology as an additional independent variable.

Lastly, for the hypothesis about firearm ownership: people who believe that human nature is generally good are less likely to support restrictions on gun control than those who believe human nature is generally evil, the two questions about guns were used as the dependent variables. The two questions about human nature were used as independent variables.

The three remaining questions, the one about level of formal education, the one about being a college student, and the one about race/ethnicity were able to be used as an independent variable for any of the three hypothesis.

These questions were not directly related to any of the three hypotheses directly, however, I felt that they were relevant demographic questions to ask and could potentially offer additional insight.

The survey questions are ordered in such a way that intentionally eases the respondent into answering questions that are more complex. I started with simple questions such as age, education, and ethnicity before I asked about things like what level of gun control is appropriate. The question that is indirectly asking about human nature is intentionally asked before the direct

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question regarding human nature so that the respondent is not already thinking about the question in the context of human nature. This was purposefully done to avoid priming the respondent to answer in a biased manner.

Both the scaled patriotism question and the scaled gun control question were asked before the yes or no patriotism question and the yes or no gun ownership question respectively. I asked them in this order in an attempt to prevent people from choosing the extremes on the scaled questions simply to make their answer align to their answer on the yes or no question. Certain questions that require some political knowledge contain a “Don’t know/no opinion” answer; these were treated as missing data during analysis.

4.2 Survey Distribution I distributed the Cal Poly Pomona survey to students on campus by standing in front of the library and asking every third person who passed by if they would take my survey. After an hour of attempting to distribute my survey this way I only had gotten three respondents. At this point I moved inside the library and instead asked people sitting at every third table on the second, third, and fourth floors to take my survey. The specific wording I used was, “Excuse me, I am a political science major working on my senior thesis project, do you mind taking a quick survey.” Because I frequently was asked what exactly I meant by, “quick survey,” my response was, “It is only one page front and back, it takes about three minutes.” In an attempt to randomize my oncampus sample as much as possible, I asked every third person and every third table.

For the Facebook survey I created a digital survey using Google Pages with the exact same questions in the exact same order as the Cal Poly Pomona survey. I shared the link to the survey on my Facebook page and encouraged my Facebook friends to take the survey and share it if they wanted to. The exact post read, “If you have a few minutes to spare, will you please take this quick survey? This survey will be used to help me complete my Senior Thesis individual research project

at Cal Poly Pomona. If you want to be a real hero, you can even share it with your friends or in a group .”

4.3 Data After the surveys were conducted, I manually entered all of the responses from the physical surveys into Microsoft Excel and downloaded the results from the Facebook survey into Excel as well. I kept the Cal Poly Pomona survey data and the Facebook survey data separate. I then recoded all the responses so that I could upload the spreadsheets into SPSS. Since all of the questions were asked in such a way that yielded either nominal or ordinal data, this process was not exceptionally complicated. I then uploaded each spreadsheet to SPSS as separate datasets.

4.4 Hypothesis Testing The first relationships that I tested were between age and support for free speech, and the relationship between political activism and support for free speech. The unit of analysis was the two different groups of survey respondents, one from Cal Poly Pomona, and one from Facebook. The dependent variable was the support one has for free speech. This dependent variable was defined in three different ways: the level of support the respondent has for free speech, the level of support the respondent has for campus speakers, and the respondent’s attitude towards hate speech. The independent variables were age and activism. IBM’s SPSS software was used to perform the statistical analysis.

•

Dependent variable 1 – FreeSpeech (ordinal) [created by using survey question 13.] o 1 no restrictions on speech o 2 current restrictions on speech o 3 additional restrictions against hate speech

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•

•

Dependent variable 2 – CampusSpeech (ordinal) [created by using survey question 15.] o 1 all speakers allowed o 2 no “hateful” speakers o 3 can deny speakers for political views o 4 both 2 & 3

o

Dependent variable 3 – HateSpeech (nominal) [created by recoding FreeSpeech.] o 0 no restrictions on speech OR current restrictions on speech o 1 additional restrictions against hate speech

o

•

Independent variable 1 - Age (ordinal) [created by using survey question 1]

•

Independent variable 2 – Activist (nominal) [created by using survey question 5.] o 0 no o 1 yes

The second set of relationships that I tested were between patriotism and support for warrantless searches, the relationship between patriotism and support for data gathering, the relationship between conservatism and support for warrantless searches, the relationship between conservatism and support for data gathering.

The unit of analysis in this case was again the two different groups of survey respondents. The dependent variable was the support one has for restrictions on the Fourth Amendment. The independent variables were patriotism and conservatism. IBM’s SPSS software was used to perform the statistical analysis.

•

Dependent variable 1 – SearchScale (ordinal) [created by using survey question 6.]

o o o o

o

1 strongly disagree with warrantless searches 2 disagree with warrantless searches 3 somewhat disagree with warrantless searches 4 Neutral or unsure 5 somewhat agree with warrantless searches 6 agree with warrantless searches 7 strongly agree with warrantless searches

•

Dependent variable 2 – DataGathering (ordinal) [created by using survey question 11.] o 1 no data gathering o 2 no data gathering without a warrant o 3 permissible to prevent terrorism o 4 permissible because I’m doing nothing wrong o 5 both 3 & 4

•

Independent variable 1 – Patriotic (nominal) [created by using survey question 16.] o 0 no o 1 yes

•

Independent variable 2 – PatriotismScale (ordinal) [created by using survey question 8. “I am very patriotic and openly proud to be an American”] o 1 strongly disagree o 2 disagree o 3 somewhat disagree o 4 Neutral or unsure o 5 somewhat agree o 6 agree o 7 strongly agree

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•

The third group of relationships that I tested were between an individual’s views on human nature and support for gun control, and an individual’s views on human nature and support for a gun ban. The unit of analysis again was the two different groups of survey respondents. The dependent variable was the support one has for restrictions on gun ownership. The independent variables were an individual’s views on human nature. IBM’s SPSS software was used to perform the statistical analysis.

•

•

•

o

Independent variable 3 – Conservative (nominal) [created by using survey question 7.] o 0 not conservative o 1 conservative

Dependent variable 1 – GunScale (ordinal) [created by using survey question 12.] o 1 no restrictions on gun ownership o 2 less restrictions on gun ownership o 3 current restrictions on gun ownership o 4 more restrictions on gun ownership o 5 people should not be allowed to own guns Dependent variable 2 – OwnGun (nominal) [created by using survey question 14.] o 0 people should not be allowed to own guns o 1 people should be allowed to own guns Independent variable 1 – HumanNatureScale (ordinal) [created by using survey question 9.] o 1 humans are good

o o •

2 humans are somewhat good 3 humans are somewhat bad 4 humans are bad

Independent variable 2 – HumanNature (nominal) [created by using survey question 10.] o 1 humans are generally good o 2 humans are generally bad

5. Results 5.1 Free Speech: Descriptive Analysis for Facebook Sample Statistics FreeSpeech N

Valid Missing

142 2

Mean

1.908

Median

2.000

Mode Std. Deviation Variance Skewness Std. Error of Skewness Range

2.0 .5700 .325 -.012 .203 2.0

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Which best describes your opinion on free speech?

Frequency Valid

Missing

Percent

Valid Percent

Cumulative Percent

No restrictions

30

20.8

21.1

21.1

Current restrictions

95

66.0

66.9

88.0

Hate speech restrictions

17

11.8

12.0

100.0

Total

142

98.6

100.0

99.0

1

.7

System

1

.7

Total

2

1.4

144

100.0

Total

Regarding guest speakers on college campuses: Cumulative Frequency Valid

Valid Percent

100

69.4

69.9

69.9

No for politics

24

16.7

16.8

86.7

No for hate speech

13

9.0

9.1

95.8

6

4.2

4.2

100.0

143

99.3

100.0

1

.7

144

100.0

Total System

Total Statistics

Skewness

CampusSpeech

Std. Error of Skewness

N

Valid Missing

143 1.476

Median

1.000

Mode Std. Deviation

Range

1.694 .203 3.0

1

Mean

Variance

Percent

All Speakers

No for politics and hate speech Missing

Percent

1.0 .8293 .688

The median support for restrictions on free speech is 2, which means supports the current restrictions on free speech. Looking further, the descriptive analysis shows that 21.1% support no restrictions on free speech, 66.9% support current restrictions on free speech, and 12.0%

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support further restrictions on hate speech. The median support for restrictions on campus speakers is 1, which means supports all campus speakers. Descriptive statistics show that 69.9% support no restrictions on campus speakers, 16.8% support restricting speakers based on their politics, 9.1% support restricting speakers for hate speech, and 4.2% support restricting speakers for either their politics or for hate speech. The mode for support for restrictions on hate speech is 0, which means against restrictions on hate speech. We can see that 88.0% support no restrictions on hate speech, and 12.0% support restrictions on hate speech.

restricting speakers for hate speech, and 13.7% support restricting speakers for either their politics or for hate speech. The mode for support for restrictions on hate speech is 0. 82.0% support no restrictions on hate speech, and 18.0% support restrictions on hate speech.

5.3 Inferential Analysis Just like the Facebook sample, the Cal Poly Pomona sample did not yield significant results. See appendix for regression analysis.

5.4 Privacy: Descriptive Analysis for Facebook Sample

Inferential Analysis Using age and activism as independent variables, statistical regression tests were applied. I assumed that both of these independent variables played a significant part in explaining support for restrictions on free speech, campus speech, and hate speech. My analysis shows that neither of these independent variables are significant in explaining support for restricting free speech.

The relationships between any of these three dependent, and either of the two independent, variables are statistically insignificant (see appendix). Both age and activism do not have an influence on support for restrictions on various areas of free speech. These results do not support my hypothesis; age and activism have a random relationship with support for restrictions on free speech.

5.2 Free Speech: Descriptive Analysis for Cal Poly Pomona Sample The statistics for the Cal Poly Pomona sample are very similar to the Facebook sample. The descriptive statistic tables can be found in the appendix. The median support for restrictions on free speech is 2. 18.0% support no restrictions on free speech, 64.0% support current restrictions on free speech, and 18.0% support further restrictions on hate speech. The median support for restrictions on campus speakers is 1. 56.9% support no restrictions on campus speakers, 19.6% support restricting speakers based on their politics, 9.8% support

Statistics SearchScale N

Valid Missing

143 1

Mean

3.140

Median

3.000

Mode Std. Deviation Variance

1.0 1.9986 3.994

Skewness

.368

Std. Error of Skewness

.203

Range

6.0

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How do you feel about the following statement: In some cases (such as suspected terrorism) law enforcement agencies should be allowed to search peopleâ&#x20AC;&#x2122;s homes or place of residence without a search warrant.

Cumulative Frequency Valid

Percent

48

33.3

33.6

33.6

Disagree

18

12.5

12.6

46.2

Somewhat disagree

22

15.3

15.4

61.5

Neutral or unsure

4

2.8

2.8

64.3

Somewhat agree

29

20.1

20.3

84.6

Agree

16

11.1

11.2

95.8

6

4.2

4.2

100.0

143

99.3

100.0

1

.7

144

100.0

Total Total

Valid Percent

Strongly disagree

Strongly agree Missing

Percent

System

The median support for warrantless searches is 3, which means somewhat disagree with warrantless searches. Looking further, the descriptive analysis shows that 61.5% disagree with warrantless searches in some aspect, 2.8% are neutral towards or unsure about warrantless searches, and 38.7% support warrantless searches in some capacity. The median support for data gathering is 2, which means supports data gathering but only with a warrant. Descriptive statistics show that 14.8% do not support data gathering at all, 55.6% support data gathering but only with a warrant, and 29.6% support data gathering without a warrant.

Inferential Analysis Using patriotism and conservatism as independent variables, statistical regression tests were applied. I

assumed that both of these independent variables played a significant part in explaining support for warrantless searches and data gathering. My analysis regarding warrantless searches showed that only patriotism is significant, explaining 5.0% of support for warrantless searches when the ordinal variable was used and explaining 3.1% of support for warrantless searches when the nominal variable was used. Additionally, my analysis regarding data gathering showed that patriotism is significant when defined as an ordinal variable and can explain 5.0% of support for data gathering.

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Table 7. Regression Model on the Effect of Support for Warrantless Searches (FB) Beta Coefficient

Significance Value

Patriotism Scale

.313

.007

R-Square

.050

5.5 Privacy: Descriptive Analysis for Cal Poly Pomona Sample

Statistics Data Gathering

Table 8. Regression Model on the Effect of Support for Warrantless Searches (FB) Beta Coefficient

Significance Value

Patriotic Y/N

1.050

.037

R-Square

.031

The relationship between patriotism and support for warrantless searches is statistically significant. In addition, the relationship between patriotism and support for data gathering is statistically significant. These results support my hypothesis. Contrary to Mangumâ&#x20AC;&#x2122;s claims, political involvement has a random relationship with trust in government.

The statistics for the Cal Poly Pomona sample are similar, but not identical to the Facebook sample. The descriptive statistic tables can be found in the appendix.

The median support for warrantless searches is also 3.

60.8% disagree with warrantless searches in some aspect, 15.7% are neutral towards or unsure about warrantless searches, and 23.5% support warrantless searches in some capacity. The median support for data gathering is also 2. Descriptive statistics show that 10.4% do not support data gathering at all, 54.2% support data gathering but only with a warrant, and 35.4% support data gathering without a warrant.

N

Valid Missing

48 3

Mean

2.688

Median

2.000

Mode Std. Deviation Variance

2.0 1.3072 1.709

Skewness

.852

Std. Error of Skewness

.343

Range

4.0

135

Trevor G. Samaha

Regarding law enforcement or government agencies gathering data such as phone records, social media correspondence, email history, etc.

Cumulative Frequency Valid

No data gathering

Valid Percent

Percent

5

9.8

10.4

10.4

Only with a warrent

26

51.0

54.2

64.6

To prevent terrorism

5

9.8

10.4

75.0

I'm not doing anything wrong

3

5.9

6.3

81.3

9

17.6

18.8

100.0

Total

48

94.1

100.0

99.0

3

5.9

51

100.0

Terrorism and I'm not doing anything wrong Missing

Percent

Total

5.6 Inferential Analysis Using the same variables as the Facebook samples and running the same tests, my analysis regarding warrantless searches showed that both patriotism and conservatism are significant, explaining 13.0% and 15.4% of support for warrantless searches respectively.

Interestingly, patriotism was only significant when the nominal variable was used. The regression analysis related to data gathering did not yield any statistically significant results (see appendix).

The relationship between patriotism and support for warrantless searches is statistically significant. In addition, the relationship between conservatism and support for warrantless searches is statistically significant. These results partially support my hypothesis.

5.7 Firearms: Descriptive Statistics for Facebook Sample Statistics OwnGun N

Valid Missing

Mean Median Mode Std. Deviation Variance Skewness

143 1 .937 1.000 1.0 .2437 .059 -3.638

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Undergraduate Journal of Political Science

Do you think that people should be allowed to own guns?

Cumulative Frequency Valid

Missing

No

Percent

Valid Percent

Percent

9

6.3

6.3

6.3

Yes

134

93.1

93.7

100.0

Total

143

99.3

100.0

1

.7

144

100.0

System

Total Std. Error of Skewness Range

.203 1.0

The median support for gun control is 3, which means supportive of the current restrictions on firearm ownership Looking further, the descriptive analysis shows that 9.4% think there should be no restrictions on firearm ownership, 24.5% think there should be fewer restrictions, 31.7% support current restrictions, 29.5% want more restrictions, and 5.0% do not think that people

should own guns. The mode support for a gun ban is 1, which means does not support a gun ban. Descriptive statistics show that 93.7% do not support a gun ban and 6.3% do.

5.7 Inferential Analysis Using the respondentâ&#x20AC;&#x2122;s views on human nature as independent variables, statistical regression tests were applied. I hypothesized that human nature played a significant part in explaining support for gun control and a gun ban. The analysis showed that human nature can explain 6.4% of support for a gun ban when using the

ordinal variable or 4.8% of support for a gun ban when using the nominal variable. My analysis regarding gun control did not yield significant results. The relationship between human nature and support for a gun ban is statistically significant. This result, in part, supports my hypothesis.

5.8 Firearms: Descriptive Statistics for Cal Poly Sample The statistics for the Cal Poly Pomona sample differ slightly from the Facebook sample. The descriptive statistic tables can again be found in the appendix. The median support for gun control is 4, which means in favor of stricter restrictions on firearm ownership. 6.1%

think there should be no restrictions on firearm ownership, 14.3% think there should be fewer restrictions, 14.3% support current restrictions, 51.0% want more restrictions, and 14.3% do not think that people should own guns. The mode support for a gun ban

Trevor G. Samaha

137

is also 1. Descriptive statistics show that 78.4% do not support a gun ban and 21.6% do.

5.9 Inferential Analysis Using the same variables as the Facebook samples and running the same tests, my analysis did not result in

any significant findings. (See appendix for regression results.)

6. Discussion Amidst the 32 regressions that were conducted, there were a few very informative results which helped to support my hypotheses. Luckily, my analysis yielded significant results in multiple areas. I did not have any statistically significant findings regarding free speech.

However, I did have similar findings on both Facebook and on campus about privacy. There is a strong relationship between individuals who self-identify as patriotic and support warrantless searches but not great predictability. Additionally, on campus I found there is a relationship between those who are ideologically conservative and those who support warrantless searches. I also found that there is a significant relationship between those who are more patriotic and those who support the gathering of phone records and other digital data without a warrant. As far as gun ownership goes, I found that among the Facebook sample, there is a strong relationship between those who view human nature as bad and those who support a ban on private ownership of firearms.

I believe that some of the lack of significant results can be attributed to the two samples themselves. While there was a strong attempt made to randomize the Cal Poly Pomona sample, it was still a convenience sample

that probably was not representative of the campus as a whole. The Facebook sample was purely a convenience sample. The fact that both samples were not random may skew the results, but it is very difficult to speculate in what way they would be skewed. Because the surveys did not ask questions that were particularly partisan or divisive, I do not think that using convenience samples was detrimental to the research.

Aside from the regression analysis, I think that the descriptive statistics themselves offer some valuable insight into opinion about restricting civil liberties.

Similar to Helwig, I found that the majority of college students are opposed to restrictions on free speech (1995). However, in the 1995 study, Helwig found that of the 48 college students he surveyed in the San Francisco area, 100% of them were opposed to restrictions on free speech. My survey of 51 college students at Cal Poly Pomona found that only 82% of college students were opposed to restricting free speech.

This could lead one to believe that the support for free speech among college students is on the decline. At a very minimum this shows that 12% fewer college students 6 are opposed to restricting free speech today, in 2018, as were opposed to restricting free speech in 1995.

7. Conclusion Finding predictors for free speech proved to be very difficult. At first, I was very disappointed by my lack of significant findings as far as free speech is concerned.

However, upon further examination, by proving the null â&#x20AC;&#x201D;â&#x20AC;&#x201D;â&#x20AC;&#x201D; 6 Amongst the groups sampled.

hypothesis I was able to determine some variables that do not have a significant relationship with support for restricting free speech.

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My best results were those relating to privacy as well as gun ownership. I was able to confirm my hypotheses in these two areas to some extent. In neither of these areas was I able to find variables that indicated strong predictability on their own, but I was able to find multiple significant relationships. I believe that with the addition of control variables, it will be possible to find strong predictability for these variables in the future.

As far as sheer numbers go, it seems that there is a smaller percentage of college students today than in the past who support civil liberties, particularly free speech.

It would be reckless to speculate about why this seems to be the case, however it does pose a very interesting question that I would like to address in future research.

The main goal of this research was to figure out what factors determine whether or not an individual is likely

to support restrictions on individual liberties and to determine what factors determine which individual liberties an individual supports restricting. While I fell far short of achieving that goal, this research builds a foundation that can be expanded on in the future. With the addition of control variables and a larger sample size, I am very optimistic about the future possibility of answering this research question.

In the future, I would like expand this survey, possibly across multiple campuses in multiple states. I would like to find an independent variable or independent variables that are strong predictors for feelings towards restricting free speech. Hopefully throughout the course of graduate school I will be able to continue with this line of research.

8. Appendix Survey 1.

How old are you? ________

2.

Are you currently a college student? a. b. c.

3.

Which best describes your highest or current level of formal education: a. b. c. d. e. f. g. h. i.

4.

Yes, at Cal Poly Pomona Yes, but not at Cal Poly Pomona No Didnâ&#x20AC;&#x2122;t graduate high school High school graduate or GED recipient 1 year of college 2 years of college 3 years of college 4 years of college (no bachelorâ&#x20AC;&#x2122;s degree) 5+ years of college (no bachelorâ&#x20AC;&#x2122;s degree) BA or BS Graduate degree

Which best describes you? a. b. c. d. e.

Hispanic or Latino/Latina Black Native American Asian White

Trevor G. Samaha

5.

Do you consider yourself to be a political activist or an activist for a certain political cause? a. b.

6.

Conservative Liberal Libertarian Socialist

How do you feel about the following statement: I am very patriotic and openly proud to be an American. a. b. c. d. e. f. g.

9.

Strongly agree Agree Somewhat agree Neutral or unsure Somewhat disagree Disagree Strongly disagree

Which best describes your political ideology? a. b. c. d.

8.

Yes No

How do you feel about the following statement: In some cases (such as suspected terrorism) law enforcement agencies should be allowed to search peopleâ&#x20AC;&#x2122;s homes or place of residence without a search warrant. a. b. c. d. e. f. g.

7.

139

Strongly agree Agree Somewhat agree Neutral or unsure Somewhat disagree Disagree Strongly disagree

Imagine someone shopping at the grocery store. The cashier accidentally gives them $10 change instead of $1 change. What do they do? a. b. c. d.

Keep the money, not their fault the cashier made a mistake.

Keep the money but feel a bit guilty about it.

Reluctantly return the money.

Immediately give the money back and request the proper change.

10. Regarding human nature, do you think people are generally good, or generally bad? a. b.

Generally good Generally bad

11. Regarding law enforcement or government agencies gathering data such as phone records, social media correspondence, email history, etc.

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Undergraduate Journal of Political Science

a. b. c. d. e. f.

I support data gathering because this is a good way to prevent terrorism I support data gathering because I am not doing anything wrong so I don’t mind Both a. and b.

I support data gathering, but only with a warrant I don’t support data gathering, even with a warrant Don’t know/no opinion

12. Which best describes your opinion on gun ownership? a. b. c. d. e. f.

I do not think that people should be allowed to own guns I think that the current laws aren’t enough; we need more restrictions on gun ownership I think that the current laws are good; we should keep them but not add any more I think that the current laws go too far; there should be less restrictions on gun ownership I do not think that there should be any restrictions on gun ownership Don’t know/no opinion

13. Which best describes your opinion on free speech? a. b. c. d.

I agree with current laws (can’t yell “fire” in a crowded building, can’t incite violence, etc.)

I don’t think that there should be any restrictions on freedom of speech I think that in addition to the current laws there should be laws against “hate speech” Don’t know/no opinion

14. Do you think that people should be allowed to own guns? a. b.

Yes No

15. Regarding guest speakers on college campuses: (Please do not consider cost or financial implications when answering) a. b. c. d.

I think that colleges should allow all speakers regardless of the controversial nature of some speakers; all points of view deserve an opportunity to be heard I think that colleges should be allowed to refuse certain speakers based on the speaker’s political views I think that colleges should not allow speakers who are considered to be racist, homophobic, misogynistic, xenophobic, or use any other forms of hate speech Both b and c

16. Do you consider yourself to be patriotic? a. b.

Yes No

Trevor G. Samaha

Tables

Table 1. Regression Model on the Effect of Support for Free Speech (FB)

Age R-Square

Beta Coefficient -.002 .004

Significance Value .430

Table 2. Regression Model on the Effect of Support for Free Speech (FB)

Activist R-Square

Beta Coefficient .023 .000

Significance Value .829

Table 3. Regression Model on the Effect of Support for Campus Speakers (FB)

Age R-Square

Beta Coefficient -.005 .011

Significance Value .203

Table 4. Regression Model on the Effect of Support for Campus Speakers (FB)

Activist R-Square

Beta Coefficient -.140 .006

Significance Value .368

141

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Undergraduate Journal of Political Science

Table 5. Regression Model on the Effect of Support for "Hate Speech" (FB)

Age R-Square

Beta Coefficient .002 .012

Significance Value .192

Trevor G. Samaha

Table 6. Regression Model on the Effect of Support for "Hate Speech" (FB)

Activist R-Square

Beta Coefficient .077 .011

Significance Value .207

Table 7. Regression Model on the Effect of Support for Warrantless Searches (FB)

Patriotism Scale R-Square

Beta Coefficient .313 .050

Significance Value .007

Table 8. Regression Model on the Effect of Support for Warrantless Searches (FB)

Patriotic Y/N R-Square

Beta Coefficient 1.050 .031

Significance Value .037

Table 9. Regression Model on the Effect of Support for Warrantless Searches (FB)

Conservative R-Square

Beta Coefficient .495 .015

Significance Value .140

Table 10. Regression Model on the Effect of Support for Data Gathering (FB)

Patriotism Scale R-Square

Beta Coefficient .193 .050

Significance Value .009

Table 11. Regression Model on the Effect of Support for Data Gathering (FB)

Patriotic Y/N R-Square

Beta Coefficient .495 .015

Significance Value .162

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Undergraduate Journal of Political Science

Table 12. Regression Model on the Effect of Support for Data Gathering (FB)

Conservative R-Square

Beta Coefficient .400 .025

Significance Value .067

Table 13. Regression Model on the Effect of Support for Gun Control (FB)

Human Nature Scale R-Square

Beta Coefficient .023 .001

Significance Value .773

Table 14. Regression Model on the Effect of Support for Gun Control (FB)

Human Nature G/B R-Square

Beta Coefficient -.085 .001

Significance Value .701

Table 15. Regression Model on the Effect of Support for Gun Ban (FB)

Human Nature Scale R-Square

Beta Coefficient -.053 .064

Significance Value .002

Table 16. Regression Model on the Effect of Support for Gun Ban (FB)

Human Nature G/B R-Square

Beta Coefficient -.131 .048

Significance Value .008

Table 17. Regression Model on the Effect of Support for Free Speech (CPP)

Age R-Square

Beta Coefficient .014 .009

Significance Value .504

Trevor G. Samaha

Table 18. Regression Model on the Effect of Support for Free Speech (CPP)

Activist R-Square

Beta Coefficient .000 .000

Significance Value 1.000

Table 19. Regression Model on the Effect of Support for Campus Speakers (CPP)

Age R-Square

Beta Coefficient -.057 .048

Significance Value .122

Table 20. Regression Model on the Effect of Support for Campus Speakers (CPP)

Activist R-Square

Beta Coefficient .470 .036

Significance Value .185

Table 21. Regression Model on the Effect of Support for "Hate Speech" (CPP)

Age R-Square

Beta Coefficient -.004 .002

Significance Value .759

Table 22. Regression Model on the Effect of Support for "Hate Speech" (CPP)

Activist R-Square

Beta Coefficient .173 .039

Significance Value .170

Table 23. Regression Model on the Effect of Support for Warrantless Searches (CPP)

Patriotism Scale R-Square

Beta Coefficient .219 .036

Significance Value .185

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Table 24. Regression Model on the Effect of Support for Warrantless Searches (CPP)

Patriotic Y/N R-Square

Beta Coefficient 1.410 .130

Significance Value .009

Table 25. Regression Model on the Effect of Support for Warrantless Searches (CPP)

Conservative R-Square

Beta Coefficient 1.655 .154

Significance Value .006

Table 26. Regression Model on the Effect of Support for Data Gathering (CPP)

Patriotism Scale R-Square

Beta Coefficient .102 .017

Significance Value .371

Table 27. Regression Model on the Effect of Support for Data Gathering (CPP)

Patriotic Y/N R-Square

Beta Coefficient -.169 .004

Significance Value .667

Table 28. Regression Model on the Effect of Support for Data Gathering (CPP)

Conservative R-Square

Beta Coefficient .189 .005

Significance Value .650

Table 29. Regression Model on the Effect of Support for Gun Control (CPP)

Human Nature Scale R-Square

Beta Coefficient .161 .035

Significance Value .199

147

Trevor G. Samaha

Table 30. Regression Model on the Effect of Support for Gun Control (CPP) Beta Coefficient -.052 .001

Human Nature G/B R-Square

Significance Value .874

Table 31. Regression Model on the Effect of Support for Gun Ban (CPP)

Human Nature Scale R-Square

Beta Coefficient -.041 .016

Significance Value .379

Table 32. Regression Model on the Effect of Support for Gun Ban (CPP) Beta Coefficient -.056 .004

Human Nature G/B R-Square

Significance Value .640

Descriptive Statistics

Statistics FreeSpeech N

Valid Missing

50 1

Mean

2.000

Median

2.000

Mode Std. Deviation

2.0 .6061

Variance

.367

Skewness

.000

Std. Error of Skewness

.337

Range

2.0

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Undergraduate Journal of Political Science

Which best describes your opinion on free speech?

Cumulative Frequency Valid

No restrictions

Percent

17.6

18.0

18.0

32

62.7

64.0

82.0

9

17.6

18.0

100.0

Total

50

98.0

100.0

99.0

1

2.0

51

100.0

Hate speech restrictions

Total

Valid Percent

9

Current restrictions

Missing

Percent

149

Trevor G. Samaha

Statistics CampusSpeech N

Valid

51

Missing

0

Mean

1.804

Median

1.000

Mode

1.0

Std. Deviation

1.0958

Variance

1.201

Skewness

1.071

Std. Error of Skewness

.333

Range

3.0

Regarding guest speakers on college campuses: Cumulative Frequency Valid

Percent

Valid Percent

Percent

All Speakers

29

56.9

56.9

56.9

No for politics

10

19.6

19.6

76.5

No for hate speech

5

9.8

9.8

86.3

No for politics and hate speech

7

13.7

13.7

100.0

51

100.0

100.0

Total

150

Undergraduate Journal of Political Science

Statistics HateSpeech N

Valid

142

Missing

2

Mean

.1197

Median

.0000

Mode

.00

Std. Deviation

.32578

Variance

.106

Skewness

2.368

Std. Error of Skewness

.203

Range

1.00

HateSpeech Cumulative Frequency Valid

Missing Total

Percent

Valid Percent

Percent

.00

125

86.8

88.0

88.0

1.00

17

11.8

12.0

100.0

Total

142

98.6

100.0

2

1.4

144

100.0

System

151

Trevor G. Samaha

Statistics HateSpeech N

Valid

50

Missing

1

Mean

.1800

Median

.0000

Mode

.00

Std. Deviation

.38809

Variance

.151

Skewness

1.718

Std. Error of Skewness

.337

Range

1.00

HateSpeech Cumulative Frequency Valid

Missing Total

Percent

Valid Percent

Percent

.00

41

80.4

82.0

82.0

1.00

9

17.6

18.0

100.0

Total

50

98.0

100.0

System

1

2.0

51

100.0

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Statistics SearchScale N

Valid Missing

51 0

Mean

3.020

Median

3.000

Mode

1.0

Std. Deviation

1.9441

Variance

3.780

Skewness

.668

Std. Error of Skewness

.333

Range

6.0

How do you feel about the following statement: In some cases (such as suspected terrorism) law enforcement agencies should be allowed to search peopleâ&#x20AC;&#x2122;s homes or place of residence without a search warrant.

Cumulative Frequency Valid

Strongly disagree

Percent

Valid Percent

Percent

16

31.4

31.4

31.4

Disagree

9

17.6

17.6

49.0

Somewhat disagree

6

11.8

11.8

60.8

Neutral or unsure

8

15.7

15.7

76.5

Somewhat agree

7

13.7

13.7

90.2

Strongly agree

5

9.8

9.8

100.0

51

100.0

100.0

Total

153

Trevor G. Samaha

Statistics DataGathering N

Valid

135

Missing

9

Mean

2.519

Median

2.000

Mode

2.0

Std. Deviation Variance

1.2629 1.595

Skewness

.973

Std. Error of Skewness

.209

Range

4.0

Regarding law enforcement or government agencies gathering data such as phone records, social media correspondence, email history, etc.

Cumulative Frequency Valid

Percent

20

13.9

14.8

14.8

Only with a warrent

75

52.1

55.6

70.4

To prevent terrorism

10

6.9

7.4

77.8

I'm not doing anything wrong

10

6.9

7.4

85.2

20

13.9

14.8

100.0

Total

135

93.8

100.0

99.0

8

5.6

System

1

.7

Total

9

6.3

144

100.0

anything wrong

Total

Valid Percent

No data gathering

Terrorism and I'm not doing

Missing

Percent

154

Undergraduate Journal of Political Science

Statistics GunScale N

Valid

139

Missing

5

Mean

2.964

Median

3.000

Mode

3.0

Std. Deviation

1.0592

Variance

1.122

Skewness

-.150

Std. Error of Skewness

.206

Range

4.0

Which best describes your opinion on gun ownership?

Cumulative Frequency Valid

Total

Valid Percent

Percent

No restrictions

13

9.0

9.4

9.4

Less restrictions

34

23.6

24.5

33.8

Current restrictions

44

30.6

31.7

65.5

More restrictions

41

28.5

29.5

95.0

7

4.9

5.0

100.0

Total

139

96.5

100.0

99.0

4

2.8

System

1

.7

Total

5

3.5

144

100.0

No guns Missing

Percent

155

Trevor G. Samaha

Statistics GunScale N

Valid

49

Missing

2

Mean

3.531

Median

4.000

Mode

4.0

Std. Deviation

1.1012

Variance

1.213

Skewness

-.813

Std. Error of Skewness

.340

Range

4.0

Which best describes your opinion on gun ownership?

Cumulative Frequency Valid

Percent

3

5.9

6.1

6.1

Less restrictions

7

13.7

14.3

20.4

Current restrictions

7

13.7

14.3

34.7

25

49.0

51.0

85.7

7

13.7

14.3

100.0

49

96.1

100.0

No guns Total Total

Valid Percent

No restrictions

More restrictions

Missing

Percent

99.0

2

3.9

51

100.0

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Statistics OwnGun N

Valid

51

Missing

0

Mean

.784

Median

1.000

Mode

1.0

Std. Deviation

.4154

Variance

.173

Skewness

-1.425

Std. Error of Skewness

.333

Range

1.0

Do you think that people should be allowed to own guns?

Cumulative Frequency Valid

Percent

Valid Percent

Percent

No

11

21.6

21.6

21.6

Yes

40

78.4

78.4

100.0

Total

51

100.0

100.0

157

Trevor G. Samaha

Statistics Age N

Valid

CollegeStudent

Education

Ethnicity

Ideology

143

143

143

143

143

1

1

1

1

1

Mean

32.462

.902

6.105

4.364

2.133

Median

24.000

.000

6.000

5.000

2.000

20.0

.0

8.0

5.0

2.0

Std. Deviation

16.9127

.9591

2.2973

1.3612

.8157

Variance

286.039

.920

5.278

1.853

.665

1.204

.198

-.215

-1.908

.303

Std. Error of Skewness

.203

.203

.203

.203

.203

Range

67.0

2.0

8.0

4.0

3.0

Missing

Mode

Skewness

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Age Cumulative Frequency Valid

Missing

Percent

Valid Percent

Percent

18.0

8

5.6

5.6

5.6

19.0

14

9.7

9.8

15.4

20.0

20

13.9

14.0

29.4

21.0

8

5.6

5.6

35.0

22.0

6

4.2

4.2

39.2

23.0

12

8.3

8.4

47.6

24.0

9

6.3

6.3

53.8

25.0

9

6.3

6.3

60.1

26.0

5

3.5

3.5

63.6

27.0

3

2.1

2.1

65.7

28.0

3

2.1

2.1

67.8

35.0

4

2.8

2.8

70.6

45.0

12

8.3

8.4

79.0

55.0

16

11.1

11.2

90.2

65.0

11

7.6

7.7

97.9

75.0

1

.7

.7

98.6

85.0

2

1.4

1.4

100.0

Total

143

99.3

100.0

1

.7

144

100.0

System

Total

CollegeStudent Cumulative Frequency Valid

Total

Valid Percent

Percent

No

73

50.7

51.0

51.0

Yes at CPP

11

7.6

7.7

58.7

Yes not at CPP

59

41.0

41.3

100.0

143

99.3

100.0

1

.7

144

100.0

Total Missing

Percent

System

159

Trevor G. Samaha

Education Cumulative Frequency Valid

Valid Percent

Percent

Didn't Graduate HS

1

.7

.7

.7

HS Diploma or GED

3

2.1

2.1

2.8

1 year of college

23

16.0

16.1

18.9

2 years of college

19

13.2

13.3

32.2

3 years of college

16

11.1

11.2

43.4

4 years of college

13

9.0

9.1

52.4

5+ years of college

6

4.2

4.2

56.6

BA or BS

37

25.7

25.9

82.5

Graduate degree

25

17.4

17.5

100.0

143

99.3

100.0

1

.7

144

100.0

Total Missing

Percent

System

Total

Ethnicity Cumulative Frequency Valid

Missing Total

Hispanic

Percent

Valid Percent

Percent

17

11.8

11.9

11.9

Black

4

2.8

2.8

14.7

Native American

1

.7

.7

15.4

Asian

9

6.3

6.3

21.7

White

112

77.8

78.3

100.0

Total

143

99.3

100.0

1

.7

144

100.0

System

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Ideology Cumulative Frequency Valid

Valid Percent

Percent

Libertarian

32

22.2

22.4

22.4

Conservative

67

46.5

46.9

69.2

Liberal

37

25.7

25.9

95.1

7

4.9

4.9

100.0

143

99.3

100.0

1

.7

144

100.0

Socialist Total Missing

Percent

System

Total

Statistics Age N

Valid

CollegeStudent

Education

Ethnicity

Ideology

51

51

51

51

51

0

0

0

0

0

Mean

21.980

1.000

5.098

2.980

2.667

Median

21.000

1.000

5.000

4.000

3.000

21.0

1.0

6.0

1.0

3.0

Std. Deviation

4.1785

.0000

1.6764

1.8165

.7118

Variance

17.460

.000

2.810

3.300

.507

-.585

-.095

-.449

Missing

Mode

Skewness

3.387

Std. Error of Skewness

.333

.333

.333

.333

.333

Range

26.0

.0

6.0

4.0

3.0

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Trevor G. Samaha

Age Cumulative Frequency Valid

Percent

Valid Percent

Percent

18.0

5

9.8

9.8

9.8

19.0

5

9.8

9.8

19.6

20.0

8

15.7

15.7

35.3

21.0

12

23.5

23.5

58.8

22.0

9

17.6

17.6

76.5

23.0

2

3.9

3.9

80.4

24.0

1

2.0

2.0

82.4

25.0

4

7.8

7.8

90.2

26.0

2

3.9

3.9

94.1

27.0

1

2.0

2.0

96.1

33.0

1

2.0

2.0

98.0

44.0

1

2.0

2.0

100.0

Total

51

100.0

100.0

CollegeStudent Cumulative Frequency Valid

Yes at CPP

51

Percent 100.0

Valid Percent 100.0

Percent 100.0

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Education Cumulative Frequency Valid

Percent

Valid Percent

Percent

HS Diploma or GED

7

13.7

13.7

13.7

1 year of college

2

3.9

3.9

17.6

2 years of college

7

13.7

13.7

31.4

3 years of college

10

19.6

19.6

51.0

4 years of college

14

27.5

27.5

78.4

5+ years of college

10

19.6

19.6

98.0

1

2.0

2.0

100.0

51

100.0

100.0

BA or BS Total

Ethnicity Cumulative Frequency Valid

Hispanic

Percent

Valid Percent

Percent

22

43.1

43.1

43.1

Black

1

2.0

2.0

45.1

Asian

12

23.5

23.5

68.6

White

16

31.4

31.4

100.0

Total

51

100.0

100.0

Ideology Cumulative Frequency Valid

Libertarian

Percent

Valid Percent

Percent

3

5.9

5.9

5.9

Conservative

15

29.4

29.4

35.3

Liberal

29

56.9

56.9

92.2

4

7.8

7.8

100.0

51

100.0

100.0

Socialist Total

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Trevor G. Samaha

9. Works Cited Becker, Carl L. 1949. Safeguarding Civil Liberty Today: The Edward L. Bernays lectures of 1944 given at Cornell University. New York: Peter Smith.

Bell, Daniel. A. 1999. “Which Rights are Universal?” Political Theory 27(6), 849-856.

Davis, Darren W., and Brian D. Silver. 2004. “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America.” American Journal of Political Science 48(1): 28–46.

Dworkin, Gerald, ed. 1997. Mills "On liberty": Critical Essays. Lanham: Rowman & Littlefield Publishers.

Fellman, David. 1959. The Limits of Freedom. New Brunswick, NJ: Rutgers University Press.

Foner, Eric. 2001. “American Freedom in a Global Age.” The American Historical Review 106(1), 116.

Goldberg, Danny, Victor Goldberg, and Robert Greenwald, eds. 2002. It’s A Free Country: Personal Freedom in America after September 11.

New York: RDV Books.

Gostin, Lawrence O. 2007. “From a Civil Libertarian to a Sanitarian.” Journal of Law and Society 34(4): 594–616.

Guth, James L., and John C. Green. 1991. “An Ideology of Rights: Support for Civil Liberties among Political Activists.” Political Behavior 13(4): 321–44.

Hardin, Russell. 2004. “Civil Liberties in the Era of Mass Terrorism.” The Journal of Ethics 8(1), 7795.

Helwig, Charles C. 1995. “Adolescents and Young Adults Conceptions of Civil Liberties: Freedom of Speech and Religion.” Child Development 66(1): 152–66.

Heyman, Steven J. 1991. “The First Duty of Government: Protection, Liberty and the Fourteenth Amendment.” Duke Law Journal 41(3): 507–71.

Huemer, Michael. 2003. “Is There a Right to Own a Gun?” Social Theory and Practice 29(2): 297–324.

Kant, Immanuel. 1997. “Equality of Rights.” In The Libertarian Reader, New York, NY: The Free Press. essay, 142–48.

Karon, Daniel R. 2013. “CIVIL RIGHTS: Suspicionless Strip Searches—What's Next?” Litigation 39(1): 8–9.

Konvitz, Milton R. 1967. “Civil Liberties.” The Annals of the American Academy of Political and Social Science 371: 38-58.

Kramnick, Isaac, & Theodore J. Lowi, (Eds.).

2009. American Political Thought: A Norton Anthology. New York: W.W. Norton.

Lahav, Gallya, and Marie Courtemanche. 2012. “The Ideological Effects of Framing Threat on Immigration and Civil Liberties.” Political Behavior 34(3): 477–505.

Locke, John. 1689. A Letter Concerning Toleration.

London: Black Swan.

Martin, Kate. 2002. “Intelligence, Terrorism, and Civil Liberties.” Human Rights 29(1): 5–7.

Pound, Roscoe. 1963. The Development of Constitutional Guarantees of Liberty. New Haven, CT: Yale University Press.

Rand, Ayn. 1997. “Ayn Rand on Rights and Capitalism.” In The Libertarian Reader, New York, NY: The Free Press. essay, 169–80.

Rothbard, Murray N. 1982. The Ethics of Liberty.

Atlantic Highlands, NJ: Humanities Press.

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Schulhofer, Stephen J. 2002. The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11: A Century Foundation Report. New York: Century Foundation Report.

Shlapentokh, Vladimir, and Eric Beasley.

2013. Restricting Freedoms: Limitations on the Individual in Contemporary America. New Brunswick: Transaction Publishers.

Spencer, Herbert. 1997. “The Right to Ignore the State.” In The Libertarian Reader, New York, NY: The Free Press. essay, 149–53.

Stone, Geoffrey R. 2007. “National Security v. Civil Liberties.” California Law Review 48(1): 2203–12.

Taylor, Stuart. 2003. “Rights, Liberties, and Security: Recalibrating the Balance after September 11.” The Brookings Review 21(1): 25–31.

Weinrib, Laura M. 2012. “The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech.” Law and History Review 30(02), 325-386.

Trevor G. Samaha

Trevor graduated Magna Cum Laude from Cal Poly Pomona in March 2018 with a BA in Political Science. During his time at Cal Poly he served as both President and Vice President of the Cal Poly Pomona chapter of Young Americans for Liberty; he was also an active member of the Political Science Club. Trevor is currently a graduate student and graduate assistant at West Virginia University where he is working toward a PhD in American Politics.

Email: trevorsamaha@gmail.com

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PUBLIC ADMINISTRATION Section D

Analyzing the Dear Colleague Letter of 2011 Athenamarie Garcia-Gunn * Abstract In April of 2011, the Office of Civil Rights (OCR) released a “Dear Colleague” letter to over 7,000 colleges that receive federal funding across the United States. This policy guidance instructed new legal obligations on the practices colleges must employ to adjudicate cases of sexual violence and sexual misconduct. It has given way to ethical debates on evidence standards, appropriate disciplinary actions in the capacity of the educational system and concerns regarding due process. Further, colleges struggle to comply due to inadequacies in the policy, lack of guidance from the Department of Education and a general lack of funding that would otherwise be used to develop practices to better investigate and adjudicate cases to appoint personnel. These lacking areas have the potential to impact accountability, compliance, due process, privacy, transparency and the investigation.

Moreover, this study not only researches these capacities, it seeks to analyze the impact of Dear Colleague Letter of 2011 and the impact of rescinding it. With these concerns in mind, this thesis aims to study The Dear Colleague Letter of 2011 through three campuses, to understand the different practices that are adapted in order to comply with OCR’s policy guidance of 2011.

This study analyzes the campuses with the highest, lowest and median reported sexual misconduct cases between the years 2014-2017 as a sounding board for analyzing federal, state and university policies and practices. Ultimately, this study cross examines qualitative and quantitative research and aims to prove if The Dear Colleague Letter of 2011 is efficient and adequate in its guidance. © 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: The Dear Colleague Letter of 2011, sexual violence, campuses, Office of Civil Rights

——— * Created by Athenamarie Garcia-Gunn, Department of Political Science, California State Polytechnic University, Pomona for her senior thesis project. Correspondence concerning this research paper should be addressed to Athenamarie Garcia-Gunn, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: Abgarcia@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 166–190. © 2018, Political Science Department, California State Polytechnic University, Pomona

Athenamarie Garcia-Gunn

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1. Introduction Before 1972, gender equality in educational institutions was mere discord and not a guiding principle. This was the decade where women were still enrolled in “home economics” to learn how to cook and sew. Whereas men were typically enrolled in a “woodshop” classes, to learn a trade, such as woodwork. In both contexts, one can see sexist principles at play, where these courses aimed to reify each gender’s “role” according to societal norms.

Sports were no different. In fact, intercollegiate sportsmanship became a predominant route for young men to access higher education, where institutions would recruit promising young men to compete in their respective universities. Sports in general were branded as American pastimes that created a long-standing cultural presence around ideals of patriotism, pride, strength, passion and tradition. Therefore, pursuing a profession in athletics was one way many students could catapult themselves from low-income to the upper echelons of society. However, these paths have been limited to men who historically have been afforded more choice, access, power and voice in all aspects of social life. Prior to 1972, gender equality in educational institutions or in sports, was a tense discussion of civil rights.

In 1972 Congress passed the “Title IX of the Educational Amendments of 1972” which prohibited sex discrimination in any educational program or activity receiving federal financial aid. To comply, educational institutions had to restructure all intercollegiate and interscholastic activities to enable gender equality. For the next 25 years, multiple institutions would file suits challenging Title IX arguing that women were less interested in sports than men and therefore gender equality in educational programs was redundant. Further, making the point that Title IX was a costly piece of legislation because women lacked the biological, physical capacity, ambition and desire to pursue such activities. The claims against Title IX were inherently sexist and discriminatory.

In 2001, the challenges to Title IX were effectively put to rest when the Supreme Court decided in Brentwood Academy vs. Tennessee Secondary School Athletic Association that any “state actor” that functions as a state organization is subject to the Constitution. Where any institutions whose employees or programs are funded through public monies, are held to state and federal regulations. This is because organizations predominantly run by state employees consequentially function as an extension of the state.

To clarify, this case’s final ruling expanded gender equality to federally funded educational institutions, not just in the context of university athletics. Moreover, ruled by the 14th Amendment’s Equal Protection Clause, which affords protections to all citizens, where federal funds cannot be used to discriminate against an individual on the basis of gender.

Although Title IX, was initially argued for gender equality in intercollegiate and interscholastic activities, gender equality encompasses many areas beyond sports and academia. In 2011, 39 years after Title IX was passed, the Department of Education (DOE) released a policy guidance, known today as “The Dear Colleague Letter of 2011” (DCL of 2011). This specific policy guidance expands Title IX to include cases of sexual harassment and sexual misconduct on campuses. Specifically, the DCL of 2011 serves as a framework for implementing practices that provide students with protective services and that educate students to reduce sexual misconduct incidences.

Further, it is important to highlight that this is the only piece of legislation that addresses gender equality and equity in post-secondary educational institutions. Most notably, implementing this policy guidance sends a clear message to students that the DOE understands that experiencing sexual misconduct or sexual violence has the potential to hinder a student’s educational experience.

The Department of Education determines that a Dear Colleague letter is a “significant guidance document” released under the Office of Management

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and Budget’s Final Bulletin for Agency Good Guidance Practices. Over the course of the DOE’s history, several “Dear Colleague” letters have been released to provide support and examples to recipients on how the Office of Civil Rights (OCR) evaluates compliance of legal obligations to federal law. This is important because although a “Dear Colleague Letter” is considered a policy “guidance”, it is technically mandatory. Also, because it is usually a supporting document to an existing law, it rarely includes funding sources to enable compliance.

In 2017, the DCL of 2011 was rescinded by the Department of Education with four main claims. The DOE argued that the Preponderance of Evidence Standard was a low bar for sanctioning disciplinary actions. Further, arguing that The DCL of 2011 was ineffective guidance, which prosecuted innocent students. The DOE also claims the policy guidance does not afford students “due process” in sexual misconduct cases. The Department of Education further argued that campuses should not have the authority to carry out sanctions because justice should not be in the jurisdiction of an educational institution.

In brief, Title IX has been in effect for 45 years and the Dear Colleague Letter of 2011 that was rescinded was only effective for 6 years between 20112017. The DOE’s decision to rescind the aforementioned letter puts into question if the policy guidance did what it was intended to do and therefore if it was effective guidance. Consequentially, this puts into question future guidance on how to handle such cases and whether cases of sexual harassment and misconduct on campus still fall under the jurisdiction of postsecondary institutions.

1.1 Research Question With the historical context of Title IX in mind, this senior thesis project aims to deconstruct the Dear Colleague Letter of 2011 that was in effect until 2017.

I aim to analyze if it clearly and thoroughly provides guidance for cases of sexual misconduct on college campuses. More specifically, I seek to probe: Is the

Dear Colleague Letter of 2011 effective in its guidance?

This thesis project hosts a multidisciplinary focus of probing effectiveness through various implemented practices, procedures and policy. Further, I intend to decipher whether this letter effectively guides postsecondary institutions to implement a system that protects students from sexual misconduct and sexual violence on campus.

1.2 Argument I question effectiveness of this policy guidance to understand in depth the claims against The Dear Colleague Letter of 2011, set forth by the Department of Education, to analyze if they hold merit and if this merit then warrants rescindment due to overall ineffective guidance. Further, I argue that the Dear Colleague Letter of 2011 provides over 7,000 postsecondary institutions across the country with a framework of protective policies and practices regarding incidences of sexual misconduct and sexual violence. With this in mind, I seek to emphasize that this policy guidance is crucial for addressing sexual misconduct incidences on college campuses. More specifically, that effectiveness of the Dear Colleague Letter of 2011, is evident when upon compliance, practices reflect equitable services, receptiveness to claims and a student body educated on consent.

This thesis will focus on investigating the causal relationship between the “Dear Colleague” letter and the reduction of sexual violence and sexual misconduct on campuses. The logic here is that the DCL of 2011 acts as a guiding principle and thorough directive for how to implement practices that effectively reduce sexual violence and sexual misconduct.

2. Literature Review To better understand the core of this research project there is a complex structure of policy to deconstruct.

First and foremost, Title IX of the Education

Athenamarie Garcia-Gunn

Amendments Act of 1972 prohibits discrimination on the basis of sex for all institutions receiving federal funds, whereby “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [...]” (20 U.S. Code § 1681). As mentioned previously, this statute affords protection for gender equitability in sportsmanship and academia. Further, it was effectively decided in Brentwood Academy v.

Tennessee Secondary School Athletics Association of 2001 that a private organization could be connected to the state in such a way that the organization itself exercises state power, known as “entwinement”.

Consequentially, any “state actor” is subject to the First, Fifth, Fourteenth Amendment and the Bill of Rights, as extensions of the governmental body and could therefore not use federal monies to discriminate against an individual (Brentwood Academy v.

Tennessee Secondary School Athletics Association, 2001). This case helped to identify educational institutions as quasi-governmental beneficiaries and held them accountable for not only their use of federal funds, but their practices.

Although gender equality was at the forefront of Title IX, the act in practice lacked supportive policy structures that were unaccounted for in 1972, such as peer-to-peer sexual harassment or sexual discrimination. For this reason, Title IX can be seen as an extension of the Civil Rights Act of 1964.

With this in mind, the Supreme Court has recognized that student-on-student harassment, misconduct and sexual violence could hinder the capacity of a student to complete their post-secondary education and consequently could discourage students from engaging in educational programs. Therefore, these incidences are recognized as barriers to an accessible educational experience.

The U.S. Department of Education’s Office of Civil Rights released a policy guidance known as The Dear Colleague Letter of 2011, that provides supportive guidance to extend Title IX. Further, this policy

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guidance provides a framework of protections for students in cases of sexual misconduct, harassment and sexual violence (Ali, 2011).

2.1 Defining Efficacy As mentioned previously, a ‘Dear Colleague Letter’ is a document that provides additional guidance to institutions, to support compliance with federal law.

Many times, in order to gain further clarification, an institution can, additionally, work with the OCR to ensure they are adequately compliant with the policy guidance and with federal law. However, this has the potential to open up an investigative audit of the institution, for violation federal law, inadequate or noncompliance. Moreover, there is no fixed standard for ‘effective’. Theoretically speaking, ‘effective’ is an ever-changing and evolving standard. However, for the purposes of my research question, I will probe ‘effective guidance’ as set forth by the standards of the DOE, the OCR and the DCL of 2011.

On January 18, 2007, the Office of Management and Budget (OMB) issued the “Final Bulletin for Agency Good Guidance Practices,” (GGP Bulletin) which became effective July 24, 2007. This bulletin offers definitions of different types of guidance documents.

The DCL of 2011, as discussed in this thesis is categorized by the DOE as a “significant guidance document”.

According to the DOE’s public comments on significant guidance documents, the Federal Register shows Executive Order 13497, signed by President Obama, as a guidance with the potential annual effect on the economy to be of $100 million or more, to create serious inconsistency and raise novel legal or policy issues arising out of legal mandates (Department of Education, 2009).

However, ‘efficacy’ is defined as “the power to produce an effect”; while ‘effectiveness’ is defined as “producing a decided, decisive, desired effect” (Merriam-Webster Dictionary, n.d.). Further, “pure efficiency” typically consists of meeting the objective at the lowest cost or obtaining the maximum amount of the objective with specified resources (Wildavsky,

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1966). To have efficiency and to produce an effect, one must consider the cost to achieving that desired effect.

In the context of the DCL of 2011, the OCR seeks a sort of “pure efficiency” from all universities –in other words full compliance. Where without additional funding, universities must then strategize to comply.

This, “mixed efficiency”, makes due with the available resources (Wildavsky, 1966). Wildavsky uses pure and mixed efficiency to probe effective practices through a political and economic lens –highlighting that economic rationality will exceed political rationality.

This is to say that when universities across the nation are unable to allocate funds to appoint the necessary personnel to carry out Title IX claims, it is not necessarily evidence of non-compliance or lacking priorities. Four years after the DCL of 2011 was released, many universities still had not appointed Title IX Coordinators, where upon the DOE issued additional guidance to urge appointments to ensure compliance (Office of Civil Rights, Lhamon, 2015).

Even though universities have the responsibility to prioritize federal law, seeking further guidance can seem indicative of inadequate compliance. Upon the DOE opening up investigative audits across the country, then grew a sense of urgency and understanding of the seriousness of non-compliance.

As of the DCL of 2011, effective guidance intends to reduce sexual misconduct and sexual violence on campuses, while also providing a protective framework for students. However, the DCL of 2011, does not include additional funding to implement this policy adequately. With this in mind, I will proceed to investigate exactly how effective the DOE’s guidance in question really is.

2.2 Due Process in Context of a University Among the guiding practices enclosed in the DCL, the “preponderance of evidence standard” was deemed the guiding principle for adjudicating educational sanctions and processes in Title IX investigations. The “preponderance of evidence standard” which is used in most civil cases, requires 51% of evidence be obtained in order for there to be a level of confidence in the facts

at hand, by which then the case is moved forward.

Essentially the “preponderance of evidence” standard of proof questions “whether the existence of a fact is more probable than its nonexistence” (Kagehiro and Stanton, 1985). It is important to note, that there are two additional standards of proof used in different types of cases. Briefly, the “beyond a reasonable doubt” evidence standard used in most criminal trials requires 91% proof for a case to move forward with confidence (Kagehiro and Stanton, 1985). The “clear and convincing evidence” standard is an intermediate standard which requires between 67% and 75% of evidence in order to move the case forward with confidence (McCauliff, 1982; United States v. Fatico, 1978).

Chmielewski (2013) supports the use of the preponderance of evidence standard citing the Supreme Court has used this standard in civil litigation involving Title VII of the Civil Rights Act of 1964, which was one of the precursors to Title IX (2013).

Further, Chmielewski (2013) notes that the Office of Civil Rights and the judicial system have instructed the use of the preponderance of evidence standard to multiple institutions and is used as a common measure of confidence. However, the preponderance of evidence standard is being framed as an insufficient measure and employed as a “presumption of male guilt”, whereby critics view this standard as an “attack on civil liberty directed specifically at men” (Chmielweski, 2013). This is especially pertinent because males make up 99% of those facing allegations of sexual assault, harassment or misconduct. Further highlighting a societal issue that needs more probing, putting into question to what extent has courting, dating and sexual experiences changed socially –if men and women are learning how to give and receive consent to sexual experiences and to what extent do these two factors result in males being the 99% of respondents in Title IX cases.

The DCL guidance policy encourages Higher Education Institutions (HEI’s) to have a quasi-parental role over students, whereby HEI’s have the responsibility of addressing sexual misconduct cases

Athenamarie Garcia-Gunn

with sensible, ethical and equitable practices that the preponderance standard may not always afford (Ellis, 2013). Ellis (2013) addresses the claims against the preponderance of evidence standard, arguing that there is a potential to hinder due process because institutions carry limitations to sanctions and are not of a criminal justice capacity. Moreover, the preponderance of evidence standard requiring 51% percent of evidence is a problem for campuses because it is not enough to adjudicate an individual in a sexual misconduct criminal case, but enough of a standard to get academic sanctions. With such a standard for evidence, there is great possibility that some innocent could be sanctioned. And if there is more than substantial evidence found against a respondent, then the case falls under the jurisdiction of the criminal justice system which is equipped to provide appropriate and proportional sanctions. On the other hand, Kagehiro and Stanton (1985) and Weizel (2012) argue that the preponderance of evidence standard adequately protects the accused student’s rights. More to the point, this scholarly work studies “due process” through Mathews v. Eldridge arguing: When the accused student’s individual interest is balanced against a realistic assessment of the risk of erroneous findings and the significant competing interest of colleges […] in the particular context of student-on-student sexual assault, it becomes clear that schools may comply with Title IX without jeopardizing the rights of the accused students.

(2012) Within this scope, preserving the rights of the accused students and protecting the victim leads to a stratum of ethical debates around due process. Where due process is a term corresponding to judicial processes that affords all parties involved to be subjected to fair, equitable, thorough, non-biased practices of investigation and decision-making.

Further, the due process clause in our constitution serves as a safeguard for citizens that may be facing the possibility of being deprived of life, liberty and the

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pursuit of happiness –when being sanctioned by state and federal law. However, critics of Title IX oppose due process in the context of a university because educational sanctions, at times, become a part of the respondents’ academic record, such as in cases that result in expulsion. Sanctions such as these put into question due process, because a sanction that results in expulsion, arguably has the consequence of depriving or derailing a student’s ‘pursuit of happiness” (Triplett, 2012).

Further, critics like Triplett argue that the Dear Colleague Letter suffers from a “fatally inadequate discussion of the appropriate balance between victim protection and due process” (2012). This is because institutions face statutory duties to be receptive to claims of assault, while juggling constitutional and contractual requirements of due process to the accused.

Triplett argues that the guidance is inadequate and forces institutions to follow the OCR’s guidelines, but risk possible due-process claims from alleged perpetrators or attempt to balance victim-protection and due-process and risk non-compliance and violation due to inadequate victim protection (2012).

HEI’s do not function in a criminal justice capacity, the preponderance of evidence standard is adequate for carrying out disciplinary actions within the jurisdiction of the educational institution. In Grogan v. Garner, the Supreme Court, ruled that the clear and convincing evidence standard was to be appropriate only when “particularly important individual interests or rights are at stake”, as in “cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant” (Triplett, 2012). Further, in Title IX cases of sexual assault that may have criminal implications, the campus holds adjudicatory proceedings for transitioning the case onto the criminal justice system.

Moreover, this standard of proof allows for cases to be carried out similar to civil cases, not as criminal cases (Triplett, 2012). This standard along with thorough implementation of the DCL of 2011, still allows for sensible resolutions, while maintaining a baseline to process claims. This, however, puts into

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question the implementation and practices to comply with the OCR’s DCL of 2011.

2.3 Education as a Preventative Measure National statistics show that 1 out of 5 freshman women are victims of sexual violence, where college women are 3 times more likely to experience sexual violence (Krebs, et al. 2009). Aware of these grim statistics, Aronowitz (2014) tackles sexual violence per the DCL of 2011 through a paradigm of public health.

Aronowitz (2014) deconstructs the impact of rape culture on consent showing that there is a point of contention, where a campus climate study does not necessarily correlate with the amount of reported sexual violence crimes on campus. Moreover, probing if there is a present rape culture on a campus through its reported crimes and implemented policies does not account for the many nuances that can give way to situations of sexual misconduct or sexual violence.

More to the point, thoroughly implemented policies are not always sufficient to reduce occurrences of sexual misconduct or sexual violence. It is educating students on rape culture in college campuses that serves as a deterrent and preventive measure for sexual violence, as intended in the DCL of 2011.

Further, this reiterates the DCL of 2011’s guidance to educate students on consent and rape culture, in order to prevent and reduce cases of sexual misconduct. Moreover, the DCL of 2011 requires campuses educate their students on how to be effective bystanders to prevent a rape incident from occurring if they should find themselves in a situation that indicates a potential lack of consent (Bayard, Plante and Moynihan., 2004).

Moreover, Perkins and Warner (2017) conduct a study on proper sexual violence responses and preventions by studying policies and practices on college campuses (2017). This study found that asking students conceptual and behavioral based questions around concepts of consent, rape and assault allowed for a more in-depth analysis. This is believed to be imperative to the quality of climate surveys and to

analyzing proper and effective policies and practices for the campus and their respective student life.

2.4 Accountability The OCR releases many DCL letters, each with a different directive, intent and in a supportive capacity.

Further, state actors, like HEI’s not only have to comply with state and federal regulations of Title IX, they must also maintain transparent records under the Clery Act. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics, also known as the Clery Act is a consumer protection law intended to provide transparency regarding campus crime policy and statistics (20 U.S.C. S 1092). More to the point, the Clery Act requires that each campus publicly report their annual crime statistics.

Specifically, criminal offenses that occurred each year including: murder, non-negligent manslaughter, manslaughter by negligence, rape, robbery, aggravated assault, burglary, motor vehicle theft, arson and sexual assault crimes such as rape, fondling, incest and statutory rape. Further, Violence Against Women Reauthorization Act known as “VAWA” also requires the Cleary Act report on cases of domestic violence, dating violence and stalking. Further, the Clery Act also requires reporting on larceny-theft, simple assault, intimidation, destruction of property, damage of property and vandalism of property. Along with weapons law violations, drug abuse violations and liquor law violations. This annual report is known as an Annual Security Report (ASR) and reports the number of cases of each of these categories for each year. The Clery Act’s reporting mandate supports Title IX policy and is used to assess crime rates regarding protections on campus for cases of sexual violence and sexual misconduct.

With this in mind, the OCR’s Title IX policy guidance also requires that campuses appoint a designated Title IX Coordinator to ensure that the campus has implemented Title IX policies. In reviewing the new OCR guidance, O’brien (2015) argues in support of Title IX Coordinators to be given

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this role solely and respectively. This is due in part to the fact that many campuses will assign the position to a faculty member with many other responsibilities.

Some institutions do this because they lack the funding to hire an individual to do the work of Title IX solely.

Failing to comply with the DCL of 2011, by not having a dedicated Title IX Coordinator, weakens the entire policy structure and goal to protect students on campuses. Non-compliance puts students’ wellbeing at risk.

The California State University (CSU) system which is the fourth largest university system in the country, fosters the education of several hundred thousand students (California State University, 2018).

With this in mind, the CSU has appointed a Title IX Coordinator and Compliance Officer in each campus, and the first-ever Systemswide Compliance Officer, who oversees all 23 campuses to ensure statewide compliance with Title IX (2015). This is evidence of positive progress receptive to the OCR’s DCL of 2011, where the CSU not only is in compliance on a fundamental level but has taken the directive one step further to meet the needs of the entire CSU system.

2.5 Implementation in Practice The media has dubbed the authority afforded to campuses to investigate sexual misconduct cases on campuses as “kangaroo-trials” in an attempt to defame the policy guidance DCL of 2011 as a process that lacks legitimacy, ethical just proceedings or credibility.

Moreover, critics hope to rebrand these investigative processes as lacking in a policy structure that affords due process. Laird (2016) argues that the justice system is better equipped to handle such cases and appropriate sanctions, with a more finite and accurate process.

However, it is important to note that not every Title IX case is one with a criminal jurisdiction, many cases are resolved internally and can escalate from mediation to restraining orders, to criminal cases –depending on the investigation’s results. Each Title IX claim and case is different from another, resulting in a sliding scale of nuanced situations that require careful review by multiple individuals and trained and informed

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personnel. By this hand, Title IX offices in colleges, must have an investigator, a compliance officer, a sanctioning and review panel and a swath of support programs such as counseling and advocacy services (Ali, 2011).

Moreover, scholars often debate the many interpretations of sexual harassment and how administrators should respond. The prevalent claim that the OCR’s directive fails to provide guidance on all scenarios of sexual misconduct cases, puts into question how administrators should implement policies that address nuanced and subtle situations.

Cumings (2017) presents a case study whereby educators were put to the test, implementing policies appropriate to their campus life juxtaposed with regard to fraternities amidst a rampant rape culture (Cumings, 2017). This case study resulted as a learning tool to gain a deeper understanding of how to properly implement policies that are appropriate to the microcosm of each campus.

On the other hand, in support of expanding Title IX, Yale University in New Haven Connecticut serves as a case study for implementation of the OCR’s DCL of 2011. Yale brought in a collaborative approach, with the Yale Women’s Faculty Forum which stimulated discussion around advocacy for sexual misconduct victims (Bagley, et al., 2012). This report argues that proper implementation needs an ongoing discussion besides educating the student body on consent, sexual misconduct and their respective rights. With this in mind, Yale has published their collaborative efforts to reflect a strong belief in an open-discussion approach to increase awareness through events and educational advocacy seminars.

In terms of accountability, Michigan State University (MSU) sets a stellar example for the practices of transparency that a campus should employ.

MSU has worked closely with the OCR and the DOE to improve their practices and policies to process Title IX claims. This university has made their data publicly available for scrutiny, even publishing the number of personnel that have been dismissed, the number of cases that results in proceedings of a criminal capacity

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and data that shows an egregious spike in cases (Callejas, 2018). MSU moved forward in making this information publicly available as it has an outstanding number of cases. Callejas’ (2018) case study revealed that proper implementation of the DCL of 2011, alongside supportive programs, leads to a spike in cases due to a more structured and receptive campus.

Further, MSU’s decision to make such data available, more than the Clery Act requires, not only is evidence of their transparent practices but also indicates a willingness to be further scrutinized for the purposes of improvement. This insight puts into question the relationship between resources and programs that a campus allocates and the data of Title IX cases, whereupon a more Title IX supportive and structured campus, shows an increasingly large need that needs to be met (Callejas, 2018).

2.6 Improving Current Practices and Creating Better Policies Although there are substantial arguments that seem to poke at a fragile OCR guidance letter, Ellman-Golan (2017) advocates in favor of saving Title IX by pushing for better designs of the federal regulations. More specifically, improving the current standards by designing more equitable and efficient investigative and sanctioning procedures. Arguing that although there are some issues with the guidance letter, there are more efficient and feasible methods to improve the DCL of 2011 than to rescind the entire policy guidance.

With this, Ellman-Golan (2017) also deconstructs the positive impacts surrounding this policy guidance letter, emphasizing a shift in paradigm across the country, whereby institutions now take sexual assault more seriously. This is also evident where upon the CSU has, as mentioned previously, appointed a Systemswide Compliance Officer.

It is difficult to quantify effectiveness of The Dear Colleague Letter of 2011. At best, quantifying effectiveness of the Dear Colleague Letter of 2011 is evident in the aforementioned case study of MSU’s transparent practices which afford the public clear data of case outcomes and resolutions, not just the number

and type of cases per year as the Clery Act instructs (Callejas, 2018).

However, focusing on suggestions of improvement, there is legitimacy to some claims that are prevalent across the country, where a trial-like process is in place to address cases and determine educational sanctions. This is due to a combination of factors: (1) a lack of funding to appoint a full-time Title IX Coordinator, (2) money infringing equity, (3) balancing victim protection with due process for alleged perpetrators and (4) oversight of the review panel. To explain the point ‘(2)’, there have been cases where students hire lawyers of their own to use in Title IX investigations. Technically, this is legal and completely within the capacity of either party involved in a Title IX case, however this highlights a lack of equity in resources that have the potential to impact a case inequitably and unfairly. With these factors, in mind, my thesis focuses on the Dear Colleague Letter of 2011 to evaluate effectiveness and potentially understand if the claims mentioned against this policy guidance have any merit. Such claims stem from the DOE’s Secretary Betsy DeVos, to perpetrators that feel they did not receive due process and where wrongly “convicted”, to rape victims who felt they did not receive the proper support or tools to seek out ‘justice’.

3. Methodology Using the aforementioned research regarding the intricacies of this policy guidance, I will be evaluating the Dear Colleague Letter of 2011 for its effectiveness in guiding institutions to implement the policy through university practices, policies and resources that afford equity, protection, support and education –as directed by this policy guidance. Further, analyzing the policy guidance for its effectiveness by the outcomes of implementation, both in evaluating the implemented practices, administrative proceedings and education efforts to reduce sexual assault and sexual misconduct.

With this in mind, an issue of contention within this thesis that I will need to caution for, is the road blocks to accessing data and insight as to the qualitative case study that I will be conducting.

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This thesis will take a qualitative approach by analyzing case studies to prove the argument that the Dear Colleague Letter of 2011 is effective guidance and provides a basic framework for investigating and managing claims. The ultimate goal will be to demonstrate a positive impact between clear guidance upon implementation, sufficient resources and practices that support implementation and consequently, outcomes of such implementation.

Further, I seek to understand if the claims against this policy have merit by evaluating three campuses in California.

3.1 Case Selection To carry out this research project I have studied Title IX, in order to understand equity under the law as intended for the Dear Colleague Letter of 2011. I will also analyze Dear Colleague Letter of 2011, both the language and the directives, to understand the claims against and for this policy. I will also study the Executive Orders 1095, 1096, 1097 which are additional directives that the CSU Chancellor’s office provided to further guide CSU campuses with adequate implementation. Further, I will analyze the implementation of the Dear Colleague Letter of 2011 through the Cal State University (CSU) system, which educates roughly 500,000 students as of today across twenty-three campuses in the state of California.

I have conducted my case selection by reviewing the Annual Security Reports (ASR’s) of each campus in the CSU, per the Clery Act. I pulled the ASR’s for each campus, for the year 2014-2015, 2015-2016 and 20162017 as these were the last three years in which the Dear Colleague Letter of 2011 was in effect. Although the DCL of 2011 was rescinded in 2017, it was rescinded at the beginning of the 2017-2018 school year and because we are currently in the school year 2017-2018, the end-of-year ASR is not yet available for the use of this study. I further analyzed all sixtynine ASR’s: three for each campus, for each of the twenty-three CSU campuses and extracted the reported cases that are of Title IX case jurisdiction; which are: the VAWA offenses of domestic violence, dating

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violence and stalking, and those of a criminal-capacity which are: sexual assault via rape, fondling, incest and statutory rape. Upon compiling this data, I was able to identify the three campuses for my study, which are: (1) CSU Monterrey Bay with the highest reported Title IX cases per population count, (2) CSU Stanislaus with the median reported Title IX cases per population count and (3) CSU Bakersfield with the lowest reported Title IX cases per population count.

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Table 1: Title IX Cases in the California State University System

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4.

3.2 Interviews Upon identifying the campuses ideal for this study, I will visit their Title IX information website to review their policies and interview their Title IX experts and student leaders. Interviewing Title IX experts and student leaders is a method of research that I am employing to gain more in-depth, first-hand insight as to university’s efforts on a local level regarding the implementation of DCL of 2011. Further, reviewing the Title IX information website will help to provide context as to the kind of information, resources and guidance that is available for a student seeking to make a Title IX claim. Further, interviewing Title IX experts for each campus will provide first-hand insight regarding an administrator’s perspective on the DCL of 2011. Moreover, I have chosen to also interview student leaders in each of the three universities’ respective student government organizations because student leaders are arguably the most engaged recipients in a university and therefore can provide first-hand insight as to their exposure and education on the DCL of 2011.

Interview Questions for Title IX Coordinators/ Title IX Administrators 1.

Do parties involved in the case have an advisor through the process?

5.

Does the university provide legal support to either parties?

6.

How many people are involved in case? Who are these individuals? What role do they play?

7.

Is funding an issue to improve efforts?

8.

Do you feel there are areas in the law that need to be fixed? Or is poor guidance? Or should be changed?

9.

Do you think that the DCL of 2011 is sufficient guidance?

10. How is the DCL of 2011 an extension of gender equity?

How do you educate students on campus per Title IX? Do you see a correlation with a more informed student body?

2.

What departments on campus do you

Interview Questions for Student Government Leaders 1.

collaborate with on Title IX cases?

3.

Do you have mental health services for both responders and complainants?

What do you know about Title IX as a student?

2.

Has your student government passed any resolutions or discussed Title IX since the DOE’s comments in 2017?

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3.

Do you feel your campus provides enough

3.3 Hypothesis

awareness and/or training on Title IX,

With the deconstruction of the core issue and the intricacies that complicated understanding effectiveness of the DCL of 2011 in mind, alongside the research methodology thoroughly explained, I will unpack my hypothesis. I hypothesize that the Dear Colleague Letter of 2011 will in fact be effective guidance that provides a framework for adjudicating claims. Moreover, the three campuses identified for this study will serve as evidence for compliance, educated students and receptive campuses. I hope to find this policy guidance is a sensible and crucial directive, necessary to create safe campuses that address claims of sexual harassment and sexual misconduct.

consent, healthy relationships and rape culture?

4.

What do students typically do in an event of sexual misconduct and sexual violence?

5.

Do you feel like your university does enough to prevent sexual misconduct such as harassment or rape?

6.

If you experienced a situation of sexual misconduct, who would you turn to for guidance in your university? Do you know who is there for you?

7.

Do you know of the services available to you? Would you actually use them?

8.

Do you have to go through training on consent as a student? Asa student leader?

9.

Your campus has (insert range of low/median/high) amount of Title IX cases?

How do you feel about this?

10. Do you think your campus could do more? If so, how?

4. Results Upon qualitative analysis, I learned that the Dear Colleague Letter of 2011 was itself additional guidance for the Office of Civil Rights’ initial guidance document “Revised Sexual Harassment Guidance (2001). The Dear Colleague Letter of 2011 outlines the Title IX administrative proceedings, and obligations related to sexual harassment and sexual violence. The Dear Colleague Letter of 2011 also provides a brief descriptor as to the Title IX coordinator’s responsibilities within the administrative capacity to protect both victims and alleged perpetrators. Further, the policy guidance discusses training and stresses that Title IX coordinators need resources, trainings and professional development to process claims appropriately. The letter also has a lengthy section of “adequate, reliable, and impartial investigation of complaints” which indicates that when a case holds criminal capacity, the university must still go forth with their own investigation. Meaning, go forth, independent of the police’s investigation and sanction students as well because the standards for either investigation differ, and the police have no jurisdiction in a student’s academic record, and a university holds no jurisdiction in a student’s criminal record. Further,

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the Dear Colleague Letter address the preponderance of evidence standard minimally. The policy guidance breaks down the stages of administrative proceedings for processing claims: (a) “notice of the grievance procedures”, (b) “adequate, reliable, and impartial investigation of complaints”, (c) “designated and reasonably prompt time frames”, (d) “notice of outcome” (Dear Colleague Letter, 2011). The letter then provides a section for prevention and education that outlines “steps to prevent sexual harassment and sexual violence and correct its discriminatory effects on the complainant and others” (Dear Colleague Letter, 2011). Further, the Dear Colleague Letter then offers a “remedies and enforcement” sections where guidance is outlined to remove the victim from a hostile environment, counseling and medical services, academic support services and additional procedures to ensure the victim is adequately supported. Further, “counseling and training” section is also provided to outline that institutions must offer counseling, health, mental health services, notifying on-campus departments that can provide further support to the students, training Title IX Coordinators, school law enforcement and any personnel that may aid in carrying out the case. Further, there is a “development of materials and implementation of policies and procedures” outlines guidance for universities to provide records, definitions, standards and information that provides context to the proceedings for public consumption. This section also outlines how a student should seek out support if they believe they want to file a Title IX report. This section also outlines guidance on reviewing evidence, maintain communication throughout the case with all relevant parties, continuously issuing policy statements that reinforce the mission of Title IX to the campus, revising grievance procedures and complaints to improve upon for overall program improvement and development.

The letter then follows with a section on “school investigations and reports to OCR” to ensure the campus conducts periodic assessments of student activities to ensure that students do not violate the school’s policies of sexual harassment and sexual

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misconduct, further investigates where student have been subjected to sexual misconduct, investigates if a employee knowingly withheld advocating for or being receptive to knowledge of a sexual misconduct allegation. Moreover, conducting a climate study of the campus periodically to adapt policies to the shift in student body and culture.

4.1 Analysis of the Dear Colleague Letter of 2011 The Dear Colleague Letter of 2011 is incredibly lengthy, however still lacks in addressing a number of areas and provides minimal input for each section. It seems that in an attempt to be concise, the Office of Civil Rights neglected to address crucial points of addressing transparency in reporting and data tracking, legal support services and the lack in funding that may not allow universities to appoint full time Title IX coordinators. The policy guidance serves as a reiteration of the principles for providing protections on sexual misconduct, however it does so with examples. Additionally, I found that the Dear Colleague Letter of 2011 was unclear to the entire nation that the Office of Civil Rights released additional policy guidance to clarify and further support the Dear Colleague Letter of 2011. Essentially there was a policy guidance for a policy guidance (January 2015), for a policy guidance (April 2015).

The Preponderance of Evidence standard, I learned was a bit problematic. This standard requires 51% of ‘evidence’ to adjudicate. However, in the context of a university, 51% at times can be a simple as a claim, the results in an investigation being opened and the alleged perpetrator forced to prove their innocence. I learned that that is the inherent issue within the context of this evidence standard in administrative proceedings of Title IX cases: that the evidence standard frames the alleged perpetrator as “guilty until proven innocent” instead of the traditional “innocent until proven guilty” principle that we rely on for adjudication and sanctioning criminals.

Moreover, whereupon a case is opened, resolutions are usually actionable – dependent on a tangible resolution, such as one-year academic probation.

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Where resolutions must exceed a “warning” and signed agreement of amicable resolve. Moreover, this then results in a bias in the policy, whereby those accused must prove their innocence and once accused must be sanctioned. Sanctions are wide-scale resolves, from mediation, to probation, to expulsion and vary largely on the case and are within the discretion of the sanctioning panel.

As for education and prevention directives of the Dear Colleague Letter of 2011, education efforts are not enough. The guidance letter guides universities to provide education on Title IX rights, rape culture, giving and receiving consent and bystander education.

Specifically, during (1) orientation programs for new students, (2) trainings for students who serve in residence halls, (2) training for student athletes and coaches, (4) school assemblies and “back to school nights” (Dear Colleague Letter, 2011).

Further, campus culture plays a huge role in student’s willingness to turn to their school for guidance, and even more of a role for the university to accurately identify outreach methods to increase the scope of impact for educating their respective student bodies. More to the point, I learned that the campus environment itself plays a role in implementing protective measures on campus. For example, CSU Stanislaus is a rural farm culture, where at night, the campus becomes empty in a way that students feel fear walking about during night classes. In an attempt to remedy this, the university has implemented emergency poll booths all over campus, within a range of proximity of one another, that lights the way through campus. These poll booths shine a light bright enough to stand as beacons in a dark campus and are themselves phones that reach the police station directly to call upon an escort service or immediate assistance.

On the other hand, Monterey Bay has the largest oncampus residents and attribute their Title IX case numbers to activity that occurs at night within the privacy of their student’s apartment dorms. To address this, all resident hall employees are trained. There are also informative graphics and a recognizable campaign

to spread the message of awareness, consent and healthy relationships.

Further, I learned that disciplinary actions are not necessarily proportional. Whereby a student that is found to have committed an act of sexual misconduct, is sanctioned academically however not in a way that will address the core issue at hand. For example, a sanction for sexual harassment may have an implication on the student’s permanent record, as that of academic probation. However, a more proportional and pivotal sanction would have been mandatory anger management classes, or domestic violence education classes, or a workshop that provides insight relevant to their case so as to ensure the student is aware, educated and less likely to repeat themselves.

Fundamentally, the results indicate that technically speaking all three campuses, along with the rest of the CSU are in compliance with the Dear Colleague Letter of 2011. However, compliance is not equivalent to effectiveness. The policy itself was wholly misunderstood across the nation. Many universities sought further guidance for implementation and still continue to work with the Department of Education and the Office of Civil Rights to ensure proper compliance. Many universities feared that upon seeking further guidance, the university would be opening itself up for a lawsuit due to potential violations of non-compliance, however, the OCR seeks to support campuses in ensuring proper implementation because fundamentally the ultimate goal is to address Title IX claims properly, to protect students in such cases, to inform and educate students better, improve outcomes and reduce these occurrences.

4.2 Data The results of evaluating the Dear Colleague Letter of 2011 through (1) CSU Bakersfield, (2) Stanislaus and (3) Monterey Bay are as follows. Bakersfield was identified as the CSU campus with the lowest reported cases in a three-year span, where their 2017 Annual Security Report claims one Title IX case between 2014-2016. Bakersfield’s population cumulatively

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over a three-year span is 27, 289, resulting in a case-topopulation ratio of 0.003664480193 (California State University Bakersfield, 2017).

Stanislaus was identified as the CSU campus with the median reported cases in a three-year span, where their 2017 Annual Security Report claims thirty-seven Title IX cases between 2014-2016.

Stanislausâ&#x20AC;&#x2122; population cumulatively over a three-year span 28, 089, resulting in a case-to-population ratio of 0.081955042 (California State University Stanislaus, 2017).

Graph 1: Cases per Campus by Count, Population and Ratio 4.3 Interview Responses Upon my interview with the three Associated Student Government of each respective university,

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Monterey Bay was identified as the CSU campus with the highest reported cases in a three-year span, where their 2017 Annual Security Report claims one-hundred sixty-nine Title IX cases between 2014-2016.

Monterey Bayâ&#x20AC;&#x2122;s population cumulatively over a threeyear span is 21, 007, resulting in a case-to-population ratio of 1.031069563 (California State University Monterey Bay, 2017).

there was a unanimous response that the education they received regarding Title IX was minimal. All three student leaders explained that in order to register for classes they have to do a mandatory review of the initial Title IX training they did when they first transferred into campus. All student leaders explained that the educational tools are videos on consent and bystander education and are minimally impactful. This is because these videos are mandatory only once or

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twice per year, and there is no testing component attached to the video to ensure the student was actually learning and listening. One of the student leaders, explained that many times they can simply press “play” on the video and walk away to do other things in their home. The video will play and the system then registers that that student is in compliance with this educational requirement, whereby they then regain access to register for classes.

Moreover, Monterey Bay student leaders explained that they understand their campus has the highest number of reported Title IX cases in a three-year span and have prioritized efforts to address this.

Surprisingly, I found that this campus had more support programs that the other two campuses in this study. Monterey Bay CSU also has a Title IX Ambassador program, which are comprised of peers who are experts on consent, healthy relationships, bystander awareness and mediation. This is because Monterey Bay acknowledges that peers and student leaders are usually the first point of contact for victims seeking support. Moreover, Monterey Bay also has a university and student government committee on Title IX, to ensure constant growth and discussion around this issue. Further, Monterey Bay also puts together many awareness events to empower women to feel safe walking around campus at night. Monterey Bay also has a system of “timely warnings” where when an assault occurs, a sort of “amber alert” is sent out to the student body and the university so that the campus is aware that a perpetrator is still on the loose. Moreover, both their resident halls leaders and student government leaders are all further trained on Title IX, consent, their rights, healthy relationships and bystander awareness because student leaders interact with their peers in a capacity that the university may not be able to reach.

Further, Stanislaus explained that their efforts are around better lighting, maintain an informed campus, empowering women and increasing emergency poll booth beacons around campus. The student body President himself admitted that he was not well informed on Title IX and would not know who on his

campus he would turn to if he himself was a victim.

This draws concern regarding education efforts because the student body President, who is arguably one of the most invested students on campus, is unaware of his rights, his resources and the support available to the student body. The President agreed that more needs to be done regarding education, stating repeatedly that the education tool presently used is insufficient. All of the student body Presidents echoed this sentiment –the education efforts are insufficient.

Further, Bakersfield’s student body President explained that she understood her campus had almost no reported cases of Title IX and asked if that meant there was no rape on campus. She explained the campus has a Title IX advocate that presents on campus routinely and has become a point of contact for outreach and for students to seek assistance. Further stated that their awareness campaign regarding Title IX has been successful and has gained recognition from the student body, allowing for a more awareness.

Further, Bakersfield also develops routine programs and events around woman empowerment that hints on assault, awareness and discussion.

Lastly, the administrators I spoke to, reiterated the guidance of the Dear Colleague of 2011. A general consensus regarding our interview discussions was that the letter initially brought about a lot of confusion, and that it was the Chancellor’s executive orders 1095, 1096 and 1097 that paved the way for the quality of administrative practices and proceedings that the CSU abides by. Further, the administrators spoke greatly about their individual efforts to educate students, however indicated that every new incoming freshman class resets the progress of an educated campus, and therefore a successful campaign that can maintain a presence long term will help to market awareness on consent and student rights. Further, a recurring theme in the interview highlights that it is difficult to gage and quantify reduction rates and the effectiveness of outreach. Bakersfield’s Title IX coordinator specially indicated that the more outreach they do, the more reporting goes up. Further, funding albeit an issue in other states, is not necessarily an issue in terms of

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compliance for the CSU. However, there is a need for increase in funding to appoint staff to support the program and meet additional needs, such as a fulltime outreach educator on Title IX, which is not presently available and is a responsibility shared among multiple people.

4.4 What does this Mean?

The findings from this research study indicate that the Dear Colleague Letter of 2011 is inefficient guidance as it does not address all the discrepancies that can and do occur on the local level. It is important to note that a lot of the issues that have been highlighted from the policy guidance’ inefficiencies, could not have been foreseen and were only addressed once identified –which possibly indicates why the Office of Civil Rights released two additional policy guidance’ to clarify the Dear Colleague Letter of 2011.

However, the three campuses that I studied in this research project, are in fact following the guidance effectively. This is due to the Chancellor’s office Executive Orders 1095, 1096 and 1097 which further clarified the Dear Colleague Letter of 2011. Moreover, the research and data complied indicate that an increase in support programs and resources show a correlation with an increase of reported cases. This is also widely supported by researchers across the country on this issue and supported by the three campuses that I studied herein. Where Monterey Bay with the highest reported cases per population count also has many more resources, support programs, tools of awareness such as their Title IX Ambassador’s program which is peer-to-peer support and education. More to the point, Bakersfield with the lowest reported cases, also reported a lack of employees to address the needs of the campus more accurately. This data means that the CSU is effectively implementing the Dear Colleague Letter of 2011, however the policy guidance is not enough guidance in and of itself.

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5. Conclusion With all of this in mind, this research further indicates that the Department of Education’s claims against the Dear Colleague Letter of 2011 holds merit.

However, the preponderance of evidence standard, although adequate from a statistical perspective, has not been properly implemented to ensure students are not wrongly convicted and instead creates a “guilty until proven innocent” proceeding. Moreover, due process is a careful dance between constitutional laws, state laws, victim-protection and due process for the alleged perpetrator. This issue of contention is not one that can be answered within these pages and is best left for more advanced researchers that can identify the intersection of due process in a local-level noncriminal case jurisdiction such as a public institution.

As for the findings in my research, the Dear Colleague Letter of 2011 tries to address due process through equity, however the preponderance of evidence standard seemingly contradicts this effort as the alleged perpetrator is trying to prove they did not in fact do something they were accused of. Further, there is something to be said about gender that plays a huge role in this policy and this particular issue. As previously mentioned, males make up a large percentage of the perpetrators and for this reason, men activist groups advocated for rescinding the Dear Colleague Letter of 2011 stating a sort of reverse sexism, and inadequacies in the law. By the same token, female activist groups refute and protest the rescinding of this letter because women make up a large portion of those abused, highlighting a grander issue in society. Groups like the Feminist Majority Foundation claim that it affords the alleged perpetrators the benefit of the presumption of truth – “innocent until proven guilty”, as is arguably the rule of thumb in society. This policy seems to lean towards a “guilty until proven innocent” rule relying on the Preponderance of Evidence Standard of 51% to investigate a claim and open a case. Many female activist groups see this as a step backwards in the movement of gender equality and Title IX inherently is a step towards the fight for gender equality. Again, this

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is a difficult tension in the complexity of the statute, that seems to balance equality and equity, for investigations in Title IX cases are not carried out in the same manner nor with the same backing as a criminal investigation that holds legal implications.

For this reason, the policy is inadequate in many areas.

On a principle note, Title IX and the Dear Colleague Letter of 2011 stand as policy towards equality and provide students with a basic framework of protection that makes the college both accountable and engaged in the crimes and potential crimes that occur within their jurisdiction.

Throughout the course of this study, it is clear that the Dear Colleague Letter of 2011 is compliance based, not preventative. This is inherently a part of the issue, and yet at a very fundamental level, is widely overlooked. For policies are reactionary responses and are designed as rules for society. Whereby not being in compliance and being in compliance do not necessarily impact incident rates, just the ability to address them.

With this in mind, the DOE needs to reinstate an improved version of the Dear Colleague Letter of 2011 that provides more in-depth concrete practices and guidance. The CSU has chosen to preserve the protections afforded by the Dear Colleague Letter of 2011 through their Executive orders 1095, 1096 and 1097. Other universities have lent themselves to increased scrutiny in order to improve their outcomes.

Michigan State University is a good example of how to go beyond compliance to improve outcomes, by allowing their data to be scrutinized for feedback.

Broadly speaking, studies have shown that more stable bureaucratic structures that serve Title IX cases, have a higher reporting rate due to a level of receptiveness to claims and a corresponding support system on campus –not due to higher incidence rates, but higher reporting rates. This indicates a campus is more receptive to student needs and prioritizes a support structure for investigating and processing these claims which allows victims to find support services, protection and some form of justice.

The intentions of Title IX are impactful when the policy is implemented thoroughly and correctly,

because although the law does not prevent such incidences, it does provide protection from reoccurrence, justice, safety and it validates the victim’s claim by having an investigation carried out.

However, the adjudications are not proportional to the offenses committed by the perpetrator. This policy leans towards a type of justice that is not educational nor restorative but oriented in punishment, it does not necessarily correct a wrong so much as it offers the victim a sense of validity to what happened to them. It is important to note that this happens in society as well, we have the largest number of incarcerated individuals in the world because society pursues punishment as justice. Truthfully, in the context of an educational system, a proportional “punishment” or measure would be more restorative. Whereby a student that is adjudicated in a Title IX case of, per say harassment, should be required to perhaps take a class on consent and write an essay explaining how they have grown since the incident, plus academic probation. This is especially important towards the educational efforts required by Title IX to aid in prevention, to teach students what consent means and to provide students with a space to understand courting, dating, consent, abuse, and how to effectively communicate on issues of sex. Society has many social norms and nuances that parents seldom teach their kids in relation to consent and dating, which many students and adults alike still struggle to understand. A class such as one on consent and Title IX can provide a space of dialogue –more than the basic video clips that students at the CSU are required to watch once a year to register for classes. It would be a more consequential social good to pursue adjudications that validate the victim and provide a sense of justice but that also educate the perpetrator on their wrongdoing. With this in mind, undoubtedly rape is prosecuted in a criminal capacity through the court system, and Title IX and the Dear Colleague Letter of 2011 offers students a support system on campus to further protect the student from their perpetrator.

However, in more nuanced cases, it raises the question on how academic probation can protect from reoccurrence, prevention or a change in behavior. In

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more egregious cases, it raises the question when upon an adjudication results in rescinding a degree, or expelling a student, how is this proportional? This calls into question if this measure is simply due to the limitations of an educational institution; and highlights inadequacies in the law that do not sufficiently address adjudication and proportionality. Further, it would be intriguing to study the life-long implications of a perpetrator whose adjudication resulted in expulsion, however were not provided with the educational tools to understand social expectations of how to gain and give consent, on dating, courting and communication.

More importantly, how expulsion resulted in a justifiable measure of “justice”. It seems ironic that an educational system not teach perpetrators more adequately on how to consent and gain consent.

Further, when upon entering a university and partaking in that campus, one consents to a sort of social contract to engage by the school’s policies and by their values.

On that premise alone, a Title IX adjudication resulting in expulsion seems fit based on violating that institution’s implied social contract according to codes of conduct and values, per say. Again, this policy holds inadequacies that provide a sense that not everyone in a Title IX case is equally protected, innocent until proven guilty and validated. The policy lacks guidance regarding transparent practices of due process, transparent practices of establishing witnesses and evidence, and transparency to establish equal support for both parties throughout the investigation. These are tense complexities that the policy lacks in assertively addressing as if conflicts with victim protection, presumption of guilt versus truth and balancing a stratum of laws. Again, universities struggle with compliance due to a lack of funding, increased reporting, lack of proper implementation, misinterpretations of the laws, lacking transparency and lacking personnel.

Finally, the Dear Colleague Letter of 2011 is a basic framework that should be improved upon and is currently rescinded while the Department of Education takes in public commentary to address these issues. To that point, I add that education efforts that are intended

to be preventative, are not enough, as indicated by students and the cases themselves. Further, more studies need to be conducted on the effectiveness of education efforts as preventive measures for reducing sexual misconduct and sexual violence on campuses.

More importantly, these education efforts need to be adaptable to social cultural norms, real-case scenarios and adaptive to stimulate learning that encompasses dialogue that is more than consent but addresses the culture of dating and courting and the different communication styles of engaging in a sexual relationship. Lastly, this research paper is a small part of the conversation as to the larger issue, this study itself is not sufficient to account for the many intricacies of this policy guidance however can be used to gain more insight towards this on-going conversation.

6. Works Cited 20 U.S Code S 1681- Title IX Code 20 U.S.C. § 1092 (F), Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act 20 U.S.C. § 1232g; 34 CFR Part 99, The Family Educational Rights and Privacy Act (FERPA) 531 U.S. 288, 2001- Brentwood Academy Vs. Tennessee Secondary School Athletics Association Ali, Russlyn. (2011). Dear Colleague Letter [PDF].

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California State University, Monterey Bay (2017).

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2017 Annual Security Report. [online] San Luis Obispo: California State University. Available at: https://afd.calpoly.edu/police/safety/reports/cleryrep ort.pdf California State University, San Marcos (2017). 2017 Annual Security Report. [online] San Marcos: California State University. Available at: https://www.csusm.edu/clery/documents/2017asr.pdf California State University, Sonoma (2017). 2017 Annual Security Report. [online] Sonoma: California State University. Available at: https://web.sonoma.edu/ps/clery/ASR_2017.pdf California State University, Stanislaus (2017). 2017 Annual Security Report. [online] Stanislaus: California State University. Available at: https://www.csustan.edu/sites/default/files/group s/University%20Police%20Department/documen ts/2017_asr_turlock_final.pdf Callejas, G. (2018) Evaluating Michigan State University’s Policies, Procedures and Resources (Bachelor of Arts Thesis). Retrieved from California Polytechnic State University of Pomona.

Chmielewski, A. (2013). Defending the preponderance of the evidence standard in college adjudications of sexual assault. B.Y.U. Education and Law Journal, 143, 150-158.

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Ellman-Golan, E. (2017). Saving Title IX: Designing More Equitable and Efficient Investigation Procedures. Michigan Law Review, 116(1), 155186.

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Krebs CP, Lindquist CH, Warner TD, Fisher BS, Martin SL. College Women’s Experiences With Physically Forced, Alcohol or Other DrugEnabled, and Drug-Facilitated Sexual Assault Before and Since Entering College. J Am Coll Health. 2009; 57:639–647.

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by Lack of Clarification on Title IX Guidance, Inside Higher ED, 25 Feb. 2016, Web. O'Brien, T. (2015). Review new OCR guidance Reinforcing Key Role of Title IX Coordinators.

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Retrieved from http://www.jstor.org.proxy.library.cpp.edu/stable/ 23364856 United States v. Fatico, 458 E Supp. 388 (E.D.N.Y. 1978).

U.S. Department of Education (2016) Types of Guidance Documents. Washington D.C. Weizel, L. (2012). The Process That Is Due: Preponderance of The Evidence As The Standard of Proof For University Adjudications of Studenton-Student Sexual Assault Complaints. Boston College. Law School. Boston College Law Review, 53(4), 1613-1655.

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Wildavsky, A. (1966). The Political Economy of Efficiency: Cost-Benefit Analysis, Systems Analysis, and Program Budgeting. Public Administration Review, 26(4), 292-310. doi:10.2307/973301 Wood, L., Sulley, C., Kammer-Kerwick, M., Follingstad, D., & Busch-Armendariz, N. (2017).

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Athena Garcia-Gunn

Following an internship on Capitol Hill in 2013, Athena has been motivated to craft and change policy in order to strengthen her community, empower marginalized people and expand accessibility to political institutions, services and resources. Athena being a former foster youth, became engaged in reforming the foster care system and advocating for her peers -thus grew her passion for advocacy.

At Cal Poly Pomona, Athena took up the position of Civic Engagement Officer in ASI where she went on to create two resolutions that impacted both the Cal Poly Pomona community and the CSU wide community. She co-authored a gender bill with CLASS Senator of 2017-2018 Cameron Pastrano and co-authored a CSU-wide resolution through the Cal State Student Association (CSSA) to protect Title IX polices and to keep those protections for all current and future students in the CSU system. Within Athena’s first quarter at Cal Poly Pomona, she gave a TedTalk at Mt. Sac shedding light on the foster care system. Shortly prior she was Class Speaker for her graduating class at Pasadena City College in 2016. In 2015, Athena was asked invited to speak before California’s Chief Justice Tani Gorre Cantil-Sakauye to enshrine November as National Adoption Month. Since 2013, Athena’s advocacy has taken her nationwide where she proactively take on issues of trauma, mental health, healing, and the openly discusses foster care issues to audiences of the fostercare community both professionals and caregivers alike. Today Athena works as a Child Welfare Policy consultant for ICF under the Department of Health and Human Services. Athena hopes to work in the top levels of government aiming to bring restorative integrity to the field to increase access, awareness and transparency to policy.

Email: abgarcia@cpp.edu

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Evaluating Michigan State University’s Best Practices in Implementing Title IX Policies, Procedures, and Resources Gustavo R. Callejas * Abstract Title IX is a federal law that protects students from being discriminated against on the basis of sex, in any federally funded educational program. The Department of Education provides guidance to over 7,000 postsecondary institutions on how to implement Title IX policies and procedures. As a result of the broad guidance, provided by the Department of Education, sexual misconduct policies and procedures vary substantially throughout postsecondary institutions across the nation. Current research suggests that many postsecondary institutions are not enforcing their own policies, nor those mandated by the federal government. In contrast, preliminary findings suggest that postsecondary institutions who have dedicated more resources to implement Title IX support services, experience an increase in the number of sexual misconduct complaints filed. Based on these findings, this thesis will evaluate Michigan State University’s best practices in implementing Title IX policies, procedures, and resources to determine whether Michigan State University, The Department of Education, and the Office of Civil Rights implement effective Title IX policies and procedures. © 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: Title IX; Discrimination; Policies; Procedures

——— * Created by Gustavo R. Callejas, Department of Political Science, California State Polytechnic University, Pomona for his senior thesis project.

Correspondence concerning this research paper should be addressed to Gustavo R. Callejas, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: grcallejas@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 191–208. © 2018, Political Science Department, California State Polytechnic University, Pomona

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1. Introduction This thesis is about the implementation of Title IX policies and procedures at Michigan State University (MSU). Title IX is a federal law that states “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (2015). The United States Department of Education (DOE) and the Office for Civil Rights (OCR) provides guidance to “7,000 postsecondary institutions” on how to implement appropriate and effective Title IX policies and procedures so that these institutions operate in a “nondiscriminatory manner” and to “ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights [emphasis added]” (April 2015 and October 2015). This is an important issue to the study in the Public Administration subfield of Political Science. This is because on September 7, 2017 the Department of Education announced that it “will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current [Title IX] approach with a workable, effective and fair system” (September 2017).

From conducting a preliminary investigation on whether the current system we have in place is workable, effective or fair, I found that policies and procedures varied greatly from one postsecondary institution to another. For example, anecdotal evidence suggests that when postsecondary institutions devote more resources to Title IX those postsecondary institutions see an increase in Title IX complaints filed. From conducting preliminary research, I found that there is often conflicting literature on what Title IX policies are considered appropriate and/or effective. One study on effectiveness found that “sexual assault education interventions for college students tend to be more effective when they are longer, presented by

professionals, and include content addressing risk reduction, gender-role socialization, or provision of information and discussion of myths and facts about sexual assault (Anderson and Whiston, 2005). In another study, the research suggests that there is “qualitative and anecdotal evidence that schools are enforcing neither their own policy requirements or stated ethical standards, nor those required by the U.S. Department of Education (DOE), Title IX, and/or state laws” (Ridolfi-Starr, 2016). Other research suggests that, postsecondary institutions, such as Harvard University, who have dedicated more resources to implementing Title IX policies and procedures have seen a sharp increase in the number of Title IX complaints filed (Harvard Office of the Provost, 2016).

There is strong emphasis in the literature that suggests more research needs to be done since there is a sense that sexual misconduct is vastly underreported because of inappropriate and ineffective policies at many postsecondary institutions nationwide.

All of this combined has lead me to the following research question: Whether MSU implemented effective Title IX policies and procedures; and whether these policies and procedures resulted in an increase in reporting of Title IX complaints, and an increase in Title IX violations? This research question is posed in this manner because MSU was obligated to implement appropriate and effective Title IX policies and procedures in compliance with federal law and under an agreement with the DOE and OCR in response to MSU’s mishandling of Title IX complaints (US DOE and Michigan State University, 2015). It is the mission of the DOE and OCR to ensure equal access to education free from sexual harassment. This thesis aims to prove whether the implementation of appropriate and effective Title IX policies, procedures, and resources correlates to an increase in Title IX complaints and violations.

2. Literature Review In order to understand whether MSU implemented appropriate and effective Title IX policies, I had to

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synthesize all the present-day research on Title IX to determine and understand what the core issues are. In my research I found constant themes that touched on: policies and procedures, reporting of complaints, due process, effectiveness, and criticisms. For the purpose of understanding what I learned in my research of MSU, I will present research on all the core issues.

2014). The third element must demonstrate that the postsecondary institution accommodated the “interests and abilities of the underrepresented gender” (Miller, 2014). Currently, the federal government and postsecondary administrators must evaluate Title IX complaints diligently and thoroughly to be complaint with federal law (Miller, 2014).

2.1 Policies and Procedures

2.2 Reporting of Complaints

In order to understand whether a postsecondary institution implements effective Title IX policies and procedures, in regard to the reporting of Title IX complaints, it is important to understand the type of disciplinary models that a postsecondary institution implements and whether those disciplinary models fall into alignment with the regulations implemented by the DOE. Currently, postsecondary institutions have three disciplinary models. The first model is the disciplinaryhearing model where “a panel tries a student case” (Smith, 2017). The second model is the investigative model where “a trained investigator handles the case” (Smith, 2017). The third model is the hybrid model where “a panel and a trained investigator work together to manage the case” (Smith, 2017). The hybrid model retains the benefits of both models as it encourages the “reporting and the [perception] of the proceedings' fairness while protecting the rights of both respondent and complainant students” (Smith, 2017).

The DOE must also determine whether Title IX policies and procedures are effective at postsecondary institutions by determining whether those higher education institutions are compliant with regulations.

Initially, the DOE determined whether a postsecondary institution was complaint with federal law if a postsecondary institution met one prong/one requirement from its three-prong test rubric (Dinneen, 2013). The DOE’s three prong test consists of three elements. The first element is that the percentage of female and male students must correlate to the female and male population enrolled in the institution (Miller, 2014). The second element is that a postsecondary institution must show that it is “expanding participation opportunities for the underrepresented gender” (Miller,

Postsecondary institutions have implemented either avenues or roadblocks which encourage or discourage the reporting of Title IX complaints. Some postsecondary institutions that encourage victims to report Title IX complaints make those postsecondary institution “look less safe, due to its high reports of violence” (Cantalupo, 2014). While postsecondary institutions who do not encourage victims to report Title IX complaints seem safer, there are fewer or in some cases zero “reports of violence” (Cantalupo, 2014).

Postsecondary institutions who anonymously survey students “collect more accurate, school-specific data about the incidence rate of sexual violence” among students which improve “institutional responses to campus sexual violence” (Cantalupo, 2014). Nancy Cantalupo suggests that the DOE should require all postsecondary institutions to “victim-report,” and to survey sexual violence regularly at their respective campuses (2014). “Doing so would create numerous benefits for students, prospective students, parents, the general public, and even schools themselves” (Cantalupo, 2014).

While some postsecondary institutions grapple with whether sexual misconduct victims are reporting Title IX complaints, other postsecondary institutions are unsure when faculty and staff have a requirement to report Title IX complaints and violations under current federal guidance because they are inappropriately trained. A postsecondary institution cannot have effective Title IX policies and procedures if its faculty and staff are not appropriately trained on how to process Title IX complaints. For example, in a “national survey of counselor educators” consisting of “657 faculty members” from 20 randomly selected states, it was clear

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that counselors were not aware of the “Title IX requirements to report student disclosures of genderbased discrimination” (Welfare, 2017). Counselors were found to exclude “some incidents that mandate reporting” and report incidents that were legally confidential (Welfare, 2017). If counselors are not appropriately trained regarding Title IX reporting procedures, their ineffective policies and procedures can lead to a decrease in reporting because they excluded incidents that should have been reported, while including instances that are invalid under current federal law. Effective policies in this case, would lead to an increase in reporting of Title IX complaints.

Furthermore, resident assistants, “students who work for university housing,” are taking the role of “first responders” who handle student “residents’ disclosures of sexual assault under both federal and institutional policy” (Holland, 2017). Although, resident assistants have a “duty to report” under current Title IX guidance to a postsecondary institution’s Title IX Coordinator, they are not legally required by federal law to undergo sexual assault training (Holland, 2017). This study found that resident assistants “who had more accurate and comprehensive knowledge of the university’s sexual assault reporting procedures were...more likely to report disclosures to the university, while resident assistants who had more positive perceptions of their role as a mandatory reporter were significantly more likely to report sexual assault disclosures to the university” (Holland, 2017). Federal law mandates that certain individuals, such as resident assistants and counselors are mandated reporters, yet the law makes no provisions that these individuals receive mandated training regarding Title IX reporting procedures. Federal law leaves it up to the postsecondary institutions to decide whether they train mandated reporters on Title IX reporting procedures. In fact, federal law gives “substantial power and authority to colleges and universities” to implementation of Title IX regulations and see little evidence…that rates of campus sexual violence are decreasing” (Wies, 2015). If postsecondary institutions implemented appropriate policies and procedures, such as training of mandated reporters, then

there would be an increase in reporting of sexual misconduct cases, as reported in various studies.

Mandatory training of mandated reporters is an effective policy that should be implemented at postsecondary institutions nationwide, yet mandated training is not a standard policy at postsecondary institutions nationwide.

2.3 Due Process There has been debate on what standard of proof is necessary to bring forward a Title IX complaint.

Currently, the DOE has allowed postsecondary institutions across the nation to choose between the preponderance of evidence standard and the clear/convincing evidence standard, to determine whether a Title IX complaint is valid. There is currently debate nationwide on which standard of proof is appropriate. Some critics argue that the clear and convincing evidence standard leads to less reporting of Title IX violations because claimants would need to provide witnesses and/or some type of proof that they were a victim of sexual assault. Others say that the use of the clear and convincing evidence standard would protect respondents from being “wrongfully found guilty”, as they have a higher risk to be found guilty under the preponderance of evidence standard (Villasenor, 2016). Outside of the debate, the judicial system has already established the standard of proof that should be used. Historically, “Title IX is a civil rights statute and civil rights’ causes of action have consistently been adjudicated using the preponderance standard” (Chmielewski, 2013). In Title IX complaints, the preponderance of evidence standard is upheld by the Mathews v. Eldrige balancing test, which consists of three parts: (1) “the private interest that will be affected by official action”; (2) “the risk of erroneous deprivation of such interest through procedures used, and probable value, if any, of additional or substitute procedural safeguards”; and (3) “the government’s interest, including the function involved and fiscal and administrative burdens that additional or substitute procedural requirements would entail.” (Edwards, 2015). It is argued that the preponderance of evidence standard in conjunction with the Mathews Balancing

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Test “is appropriate in that accused students are not deprived of their due process rights under the preponderance of the evidence standard” (Edwards, 2015).

2.4 Effectiveness In order to determine the best practices regarding Title IX policies and procedures, it must be determined which policies and procedures are most effective. Jason Block examines the best practices in Title IX implementation as having “separate and distinct sexual harassment [policies] that covers faculty, staff, and students either in separate policies or in one allencompassing policy” (2012). Jason Block further opines that distinct policies allow faculty, staff, and students to have a clear and easy understanding of how consent is defined and the jurisdiction a postsecondary institution has in regard to claims of sexual misconduct (2012). It is imperative that postsecondary institutions implement clear and distinct policies as this is the first step in implementing effective Title IX policies and procedures. The next step is educating faculty, staff, and students on what those policies and procedures are.

However, it is not simply educating faculty, it is determining and utilizing the types of educational programs that are the most effective. In terms of education, effectiveness can be measured by how long an individual retains the information they learn and whether sexual misconduct cases rise, fall, and/or remain stable. Lonsway and Kothari examines whether “mandatory rape prevention education programs” are effective (2000). In this study, mandatory rape prevention education programs were found to be most effective when “students involved in more than one [sexual misconduct] educational program” received “repeated intervention” (Lonsway, 2000). Specifically, mandatory rape prevention education programs are most effective when they are combined with other forms of educational programs because they reinforce the education that has been previously learned and they stall the deterioration, of the information learned, that occurs months after participation in an educational program

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(Lonsway, 2000). Other studies have shown the effectiveness of rape prevention programs administered prior to any acts of sexual misconduct. Hanson and Gidycz empirically examine the effectiveness of “a sexual assault prevention program” (1993). They found that the rape prevention programs were “effective in decreasing the incidence of sexual assault for women without a sexual assault history” because it “led to a decrease in dating behaviors found to be associated with acquaintance rape and an increase in knowledge about sexual assault” (Hanson, 1993). These studies show that clear and distinct policies, as well as, continuous educational programs are effective policies and procedures which aid in the prevention of sexual misconduct and Title IX complaints.

2.5 Criticisms One of the criticisms of current Title IX practices is the single-investigator model. In this model, “a single, trained member of the university’s Title IX investigation office conducts in-person interviews with each of the parties, reviews evidence, meets with witnesses, and prepares a report detailing his or her determination of the credibility of each party’s account. The report is then reviewed by both parties and by the Title IX coordinator and is then adopted as the final determination of whether the university’s policy was violated” (Ellman-Golan, 2017). One of the main criticisms is that same individual conducts the investigation and determines the educational sanction in a Title IX complaint (EllmanGolan, 2017).

Students with Title IX complaints who have “no support by their schools, are called upon to file with OCR; to go public to the media, at great personal risk, when filing with OCR is insufficient; and to wait for the larger structural investigation to conclude before they may obtain relief for themselves. This system is not only unfair but also runs contrary to Title IX’s purpose of providing individuals with ‘effective protection’” (Peterson, 2016).

Five postsecondary institutions who have “intentionally acted in clear violation of Title IX”

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include the following: (1) The University of Colorado Boulder settled a case where two female students were raped by football players for “$2.5 million and $350,000, respectively” (Coray, 2016); and (2) The Southern Methodist University, after an investigation by the Office of Civil Rights for failing to properly respond to a Title IX complaint, amended its policies and procedures to include “properly notifying students and faculty of the Title IX Coordinator on campus, creating resources advising students of their Title IX rights, [training] staff and students on the appropriate definitions of gender harassment, sexual harassment, and sexual assault, and clarifying options for parties involved in sexual harassment claims” (Coray, 2016); (3) In 2014, Columbia University released a report that revealed sexual misconduct investigations “took longer than the sixty days allowed by both federal guidance and Columbia’s own [internal policies]” and “expelled zero students found to have committed sexual assault that year” (Ridolfi-Starr, 2016); (4) In a report released by Amherst College “not a single student found responsible for sexual assault was expelled” between the 2009-2011 academic school years (Ridolfi-Starr, 2016); and (5) In 2016, Gustavus Adolphus College punished a student who committed rape and sexual assault “by requiring him to write a 500-word reflective essay” (Ridolfi-Starr, 2016). In addition to these significant findings, as of 2015, 174 postsecondary institutions were “currently under investigation for violating Title IX in sexual and dating violence cases” (Ridolfi-Starr, 2016). This is important because the DOE’s broad guidelines regarding Title IX have allowed postsecondary institutions to implement Title IX policies and procedures which sweep Title IX complaints under the rug and/or allow for educational sanctions which are inappropriate for the type of sexual violence perpetuated. Further, these types of barriers allow for postsecondary institutions’ administrators to have no “interest in becoming compliant... [to continue to be non-compliant] despite the legal mandate to meet the requirements of Title IX” (Dinneen, 2013). These types of violations are significant because they lead to, not only an underreporting of sexual misconduct cases, but they also

create an environment where students are barred from equal access to education because of implementation of policies and procedures which are ineffective and often dangerous.

Present day research has shown there is a lack of sexual assault education programming that is catered to “individuals from racially and culturally diverse backgrounds” (Anderson, 2005). The one study that has been conducted showed that African-American men “may respond more positively to a culturally relevant” sexual assault education programming than to a “colorblind” sexual assault education programming (Anderson, 2005). Also, LGBT students are not adequately represented in present day research nor protected by current Title IX guidance. “Title IX does not prohibit discrimination on the basis of sexual orientation” (Kimmel, 2016). The lack of sexual assault educational programming that caters to minorities and/or LGBT students is significant. Studies have shown that educational programs are most effective when they are tailored to certain groups.

“Government estimates suggest that for every rape reported, 3-10 rapes are committed but not reported” (Koss, 1987). Victims of sexual assault simply do not report. In order to achieve effective Title IX policies and procedures, there must be input from “campus victim advocates, Title IX coordinator(s), student affairs staff and administrators, students, and the larger campus community” (Koss, 2014). Postsecondary institutions must provide educational programs which prevent sexual assault, they must adhere to disciplinary models that protect the rights of both claimants and respondents, they must implement policies and procedures which are effective, and they must change policies and procedures when they are ineffective and/or dangerous.

3. Methodology This thesis will analyze the effectiveness of MSU's Title IX policies and procedures through qualitative and qualitative analysis. Specifically, this thesis will use a case study and a data analysis. I will first analyze the

Gustavo R. Callejas

following reports: The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”) reports, MSU's Office of Institutional Equity (“OIE”) Title IX Annual Report, Husch Blackwell's (“Husch”) Review of Michigan State University’s Policy on Relationship Violence and Sexual Misconduct Reports, and MSU's Sexual Violence Advisory Committee (“SVAC”) reports. This thesis will utilize a dual approach in order to determine Whether MSU implemented effective Title IX policies and procedures; and whether these policies and procedures resulted in an increase in reporting of Title IX complaints, and an increase in Title IX violations?

The ultimate goal is to determine whether the DOE and OCR’s best practices resulted in policies and procedures that were effective at MSU. 3.1 Qualitative-Case Study MSU was chosen to be analyzed as a single case study for a variety of reasons. Initially, MSU was chosen because of the large amount of news coverage relating to Larry Nassar, a former physician at MSU, who has been recently been convicted of seven counts of criminal conduct. This was a result of several inappropriate encounters, while he was a physician at MSU. On further research, I discovered, outside of the Larry Nassar case, MSU had a long history of revising its Title IX policies and procedures and was currently in the process of doing so again. Further, I found that MSU over time was becoming more transparent in reporting its internal policies and allocation of resources.

The importance of analyzing the various reports is to determine whether there is a correlation between the allocation of resources, and whether those practices resulted in reducing and preventing sexual harassment, sexual misconduct, and sexual violence. This will determine which policies and procedures are effective. It is often difficult in matters of policy to understand how different policy implementations affect a campus, however when looking at multiple policy recommendations and referencing the qualitative data with the quantitative data and the inferred patterns, it

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will be much clearer as to what policies produced what outcomes at MSU. The SVAC is a MSU committee comprising of students, faculty, and staff who are appointed to the advisory committee by the University President (MSU SVAC, 2015). The purpose of the SVAC is to provide recommendations and strategies to MSU’s Title IX Coordinator regarding the MSU’s compliance with Title IX. These recommendations to MSU come as annual reports. First, I analyzed the 2015-2016 SVAC report which provided policy recommendations on how MSU should implement: “Major Theme 1: Increase University Transparency and Sustainability” and “Major Theme 2: Augment University Programs and Offer Multi-Dose Learning” (MSU SVAC, 2016). Then, I analyzed the 2016–2017 SVAC report which provided policy recommendations on how MSU should implement: “Major Theme 1: Augment University Communication,” “Major Theme 2: Continue Investing in Multi-Dose Learning/Education/Support Services Within Campus Community Settings” and “Major Theme 3: Distribute Responsibility (“It’s On Us”) Across the Campus Community” (MSU SVAC, 2017).

Finally, I reviewed Jessica Norris’, MSU’s Title IX and ADA Coordinator, response to the recommendations to the 2015-2016 and 2016-2017 SVAC reports to determine whether MSU decided to adopt the policy recommendations and strategies (MSU OIE, 2016 and MSU OIE, 2017).

Husch Blackwell is a law firm that provides legal services / solutions to businesses so that they meet their business goals (Husch Blackwell, 2018). Husch Blackwell was contracted by MSU to provide an assessment of MSU’s Title IX policies and procedures to determine whether they were in compliance with the legal requirements of Title IX (Husch Blackwell, 2017).

I did an analysis of Husch Blackwell’s "Review of Michigan State University’s Policy on Relationship Violence and Sexual Misconduct" (Report 1 of 2) (Husch Blackwell, 2017). The report provided an overview of MSU’s: “Compliance with Title IX and VAWA,” “Alignment with Policies and Procedure Best

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Practice,” “Alignment with Peers” and “Leading-Edge Practices” (Husch Blackwell, 2017).

Violence Free Communities (“VFC”) is a committee whose purpose is to support “a campus culture free of relationship violence and sexual misconduct” (VFC, 2016). VFC provides support to MSU’s Title IX Coordinator by collaborating with Title IX stakeholders, such as SVAC, within the campus community and providing MSU’s Title IX Coordinator with recommendations. First, I analyzed VFC’s 2016-2017 Annual Report which provided several recommendations (VFC, 2017). Then, I reviewed Jessica Norris’. MSU’s Title IX and ADA Coordinator, response to VFC’s 2016-2017 Annual Report (MSU OIE VFC, 2017).

I also reviewed the Resolution Agreement between MSU, DOE, and OCR (Michigan State University, 2015). The Resolution Agreement mandated that MSU adopt stringent Title IX policies, procedures, and resources (Michigan State University, 2015).

3.2 Quantitative-Data Analysis Initially, I intend to cull data from the 2001 to 2011 Clery Act reports. The Clery Act is a federal law which requires postsecondary institutions that receive federal funding for “financial aid programs to maintain and disclose campus crime statistics and security information” (Federal Student Aid, 2018). The purpose of culling data from Clery Act Reports is to determine a baseline of campus crime statistics and to determine whether the enactment of certain policies and procedures resulted in MSU have higher incident rates of stalking, sexual harassment, sexual misconduct, and sexual violence. The Clery Act Reports came from two main sources. The first source was the United States’ Department of Education Campus Safety and Security (“CSS”) website for the Clery Act Reports from 2001 to 2016. The Clery Act Reports downloaded from the CSS website contained five different data sets. The data sets are criminal offenses that occurred: non-campus, on campus, on campus student housing facilities, public property, and reported by local state police. Within each

of those five data sets there were two different series of data/numerical inputs. The data from years 2001 to 2013 only contained two types of data/numerical inputs related to “sexual misconduct” crimes: sex offenses – forcible and sex offenses – non-forcible. The data from the years 2014 to 2016 contained four types of data/numerical inputs related to “sexual misconduct” crimes: rape, fondling, incest, and statutory rape. The second source of Clery Act Report data derived from MSU’s Annual Security & Fire Safety (“SFS”) Report, published in October 1, 2017. This report contained data for years 2014 to 2016. The types of data/numerical inputs which related to “sexual misconduct” crimes were: rape, fondling, incest, statutory rape, domestic violence, dating violence, and stalking. The data from the CSS website and SFS Report had to be merged as the data from the CSS website had missing data. I manually inputted the data from both sources into an Excel file to get the total amounts of “sexual misconduct” crimes committed each year beginning at 2001 and ending at 2016. I then created a line graph from that data. The yaxis were years and the x-axis were the number of sexual misconduct complaints filed and disclosed in the Clery Act Reports for that year. I then labelled on the line graph the following key policy changes: 2011, creation of Sexual Harassment/Assault policy, 2012, creation of Title IX Coordinated Response Team, 2013, Sexual Assault Awareness Campaign Launch, 2014, MSU Police Department Sexual Assault Protocols launched, and 2015, Major Revisions to Title IX. The purpose of this was to assess whether there was a potential correlation between policy changes and the amount of sexual misconduct complaints filed that year.

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Chart A: Clery Act Reports 2001-2016

Next, I culled data from the 2015-2016 and 20162017 MSU’s Office of Institutional Equity’s (“OIE”) Title IX Annual Reports. These reports contained publicly disclosed information of how many Title IX complaints were filed per academic year, whether those complaints were investigated or not investigated, the reasons why they were investigated or not investigated, the outcome of those investigations, and the educational sanctions resulting from those violations. The OIE reports also contained information regarding the amount and type of resources MSU provided for that reported year and the number of students that attended programs, workshops, and support and emergency services. I decided to focus in on the following MSU resources: OIE, Sexual Assault Program (“SAP”), a program which offers “counseling, advocacy, and support groups to MSU students”, and Sexual Assault and Relationship Violence Prevention Program (“SARV), a program/workshop that is a requirement “for all first year and transfer students” to educate students on “sexual assault and relationship violence” (MSU SAP, 2018 and MSU SARV, 2018). Please note, that I omitted the MSU Police Department because

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the number of officers dedicated to sex-based crimes remained constant during this time period. For OIE, I consolidated the number of investigators, staff, and dedicated specialist into one numerical value. For SAP, I consolidated the amounts of program coordinator, therapists, counselors, program advocated, volunteer coordinator, office manager, and health care assistant into one numerical value. For SARV, I consolidated the amount of peer educators, graduate assistants and staff into one numerical value. I manually inputted the data for the number of Title IX complaints filed for the 20152017 years into an Excel file. I then created a line graph from that data. The y-axis are years and the x-axis are the number of Title IC complaints filed and disclosed by MSU’s OIE. I then labelled on the line graph the following amount of resources afforded by the following programs: OIE Staff, SAP Staff, and SARV Staff. The purpose of this was to assess whether there was a potential correlation between the amount of resource allocated and the amount of Title IX complaints filed that year.

Chart B: Title IX Complaints 2015-2019 Next, I manually inputted data from the 2015-2016 OIE Title IX Annual Reports into a table that contained the following data / numerical inputs: the total number

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of Title IX complaints filed that year, followed by a breakdown of the following sub-categories: Title IX Investigations which: resulted in a dismissal, resulted in disciplinary action, resulted in a non-violation, or were still open. I also included the following data/numerical inputs: the number of Title IX complaints that were not investigated, followed by a breakdown of the following sub categories: Title IX complaints not investigated because: of non-participation, of administrative closure, of no jurisdiction, and complaint did not meet standard.

The purpose of this was to assess the potential correlation between the amounts of complaints filed and the amount of disciplinary actions.

Table A: 2015-2016 Title IX Complaints

Table B: 2016-2017 Title IX Complaints

Total Investigated Formal Investigation Violation

2%

Other

29

4%

40

5%

19

2%

Total Non-Investigated

625

87%

Non-participation

451

63%

Administrative Closure

23

3%

No jurisdiction

101

14%

Does not meet standard

50

7%

718*

100%

Non-Violation Still Open

66

14%

38

8%

Dismissal

9

2%

Other

29

6%

28 17

6% 4%

4. Results

Total Non-Investigated

378

82%

4.1 Case Study

Non-participation

Non-Violation

298

64%

Administrative Closure

12

3%

No jurisdiction

50

11%

Does not meet standard

27

6%

Total Title IX Complaints

461

100%

2% of cases resulted in dismissal / 6% of cases resulted in other disciplinary actions

10% 6%

18%

Still Open

13%

74 15

83

Violation

93 44

Percentage

Formal Investigation

Percentage

Dismissal

Number Total Investigated

Number

Total Title IX Complaints

2% of cases resulted in dismissal / 4% of cases resulted in other disciplinary actions

The SVAC, VFC, and Husch Blackwell reports seem to be reports to show the DOE that there are efforts in place to be in compliance with federal law and the resolution agreement signed in 2015. These reports indicate a type of facade, which placate the need for the DOE and OCR to probe deeper into MSU internal policies, whereby the reports only touch on the surface layer. They are strictly there to reaffirm that MSU is being compliant with the minimal requirements of federal guidelines and the resolution agreement.

However, the evidence does parallel the supposedly implemented policies. On the other hand, the Husch

Gustavo R. Callejas

Blackwell report often refers to MSU as “leader” in postsecondary institutions regarding Title IX policies and procedures. We know this is not true because in 2015, MSU was mandated by the DOE and OCR into a resolution agreement, which forced MSU to have narrow, binding, strict guidance given MSU’s negligence and poor previous policies. Further, the Husch Blackwell report claims that MSU is using a hybrid model of the disciplinary model and suggests that this model is ideal, while giving the pros and cons of other commonly used nation-wide models. The reason for highlighting this, is because the Husch Blackwell report consistently praises MSU’s practices and policies as the best in the nation while at the same providing alternatives with pros and cons, however suggestion that the MSU does not change anything. Essentially, their reports do not provide any further guidance, nor suggestions, nor criticisms. Further, MSU hires Husch Blackwell to write an external report. These reports are presented in a way that present “non-bias” and objectivity – however the reports are profoundly bias and funded by the MSU. This is essentially a practice of falsified compliance, to “prove” to the DOE that MSU has transparent practices and procedures, to maintain the agreement and “prove” ethical practices. It’s not worth analyzing these reports as MSU’s Title IX coordinator has consistently responded back to three separate reports with the following boilerplate language: “First, let me begin by thanking each of you for your service on the committee and your commitment to enhancing the University’s response, prevention and education efforts, and supportive services. I appreciate the work of the committee in gathering input from the campus community and representing the voice of the campus on this important issue. I have attached for your reference the Annual Report and recommendations prepared by the Violence Free Communities Committee. Their recommendations were informed by the input you gathered through the open forum and focus groups conducted during the spring semester. I am supportive of all of the recommendations VFC presented and will work with

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them to implement these recommendations and seek input from the SVAC as appropriate in that process.

More detailed information about the VFC plans will be provided during the fall SVAC orientation. Thank you again for your work this year and for the integral role you played in representing the voice of the community in this process. We have accomplished much this year and I look forward to working with you next year as we continue to advance our efforts in this area” (MSU OIE, 2016 and MSU OIE, 2017) Essentially, MSU is barely compliant with federal law but are not addressing the core issues of transparency, communication, recommendations, and resolutions that the campus community feels is necessary for appropriate and efficient Title IX policies and procedures. Specifically, many of the reports request that MSU provide regular and routine communication with faculty and staff regarding new or existing policies. With one report citing that MSU needs to implement communication that is “non-reactionary.”

Most importantly, the SVAC has requested that MSU implement communication strategies that are scripted and brief (SVAC, 2017). There is also a sense that the campus community is looking towards administration and department heads to spearhead the engagement and dialogue at the campus. With that in mind, there isn’t any evidence that policy recommendations are being implemented.

4.2 Chart A In the first time series chart, “Number of Sexual Misconduct Complaints – Clery Act Reports 20012016” (Chart A) I plotted on the y-axis the years and I plotted the following data points on the x-axis for the number of sexual misconduct complaints filed and disclosed in the Clery Act Reports for that correlating year. For 2001, the number of reports filed that year were 42 in total. For 2002, the number of reports filed that year were 49 in total. For 2003, the number of reports filed that year were 34 in total. For 2004, the number of reports filed that year were 56 in total. For 2005, the number of reports filed that year were 24 in

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total. For 2006, the number of reports filed that year were 29 in total. For 2007, the number of reports filed that year were 31 in total. For 2008, the number of reports filed that year were 15 in total. For 2009, the number of reports filed that year were 27 in total. For 2010, the number of reports filed that year were 25 in total. For 2011, the number of reports filed that year were 29 in total. For 2012, the number of reports filed that year were 37 in total. For 2013, the number of reports filed that year were 53 in total. For 2014, the number of reports filed that year were 96 in total. For 2015, the number of reports filed that year were 73 in total. For 2016, the number of reports filed that year were 147 in total.

Then on the line graph I marked when key Title IX policies went into effect and the potentially correlating increase in the number of sexual misconduct complaints in the following year. For 2011, the Creation of Sexual Harassment / Assault Policy resulted in an increase of 8 reports. For 2012, the Title IX Coordinated Response Team resulted in an increase of 16 reports. For 2013, the Sexual Assault Awareness Campaigns Launch resulted in an increase of 43 reports. For 2014, the MSU PD sexual assault protocols launch resulted in a decrease of 23 cases (during this time, MSU signed an agreement with the DOE and OCR to revise and strengthen its internal policies). For 2015, the major revisions to Title IX resulted in an increase of 73 cases.

4.3 Chart B In the second time series chart, “Number of Title IX Complaints – MSU’s Title IX Program Annual Report” (Chart B) I plotted on the y-axis the years and I plotted the following data points on the x-axis for the number of Title IX complaints filed and disclosed in the 2015-2016 and 2016-2017 MSU’s OIE Title IX Annual Reports for that correlating year. For 2015, the number of Title IX complaints filed that year were 201 in total. For 2016, the number of Title IX complaints filed that year were 461 in total. For 2017, the number of Title IX complaints filed that year were 718 in total.

This next chart is based off of data from MSU’s Title IX Annual Reports from 2015-2017.

On the line graph, I also provided a breakdown of the amount of resources provided that year. In 2015, MSU’s OIE had 3 staff members, MSU’s SAP had 4 staff members, and MSU’s SARV did not exist at this time.

In 2016, MSU’s OIE had 19 staff members, MSU’s SAP had 8 staff members, and MSU’s SARV had 56 staff members and volunteers (this resulted in an increase of 16 OIE staff members, 4 SAP members, and 56 SARV staff members and volunteers). In 2017, MSU’s OIE had 26 staff members, MSU’s SAP had 10.5 staff members (one part-time employee), and MSU’s SARV had 63 staff members and volunteers (this resulted in an increase of 7 OIE staff members, 2.5 SAP staff members, and 7 SARV staff members and volunteers).

4.4 Table A In the table, “2015-2016 Title IX Complaints” (Table A) I extracted the data for the investigation outcomes filed that year. Out of 461 Title IX complaints filed that year (100%), 83 were investigated (18%) and 378 were Non-Investigated (82%). I then further broke down those numbers into sub-categories under the “investigated” and “non- investigated” categories. For formal investigations that resulted in a violation that resulted in a “dismissal” the sub-total was 9 cases (2%).

For formal investigations that resulted in a violation that resulted in “other disciplinary actions” the subtotal was 29 cases (6%). For formal investigations that resulted in a “non-violation” the subtotal was 28 cases (6%). For investigated cases that were “still open” the subtotal was 17 cases (4%). For non-investigated cases which resulted from “non-participation” the subtotal was 298 cases (64%). For non-investigated cases which resulted from “administrative closure” the subtotal was 12 cases (3%). For non-investigated cases which resulted from “no jurisdiction” the subtotal was 50 cases (11%). For non-investigated cases which resulted from “does not meet standard” the subtotal was 27 cases (6%).

4.5 Table B In the table, “2016-2017 Title IX Complaints” (Table B) I extracted the data for the investigation outcomes

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filed that year. Out of 718* Title IX complaints filed that year (100%), 93 were investigated (13%) and 625 were Non-Investigated (87%). I then further broke down those numbers into sub-categories under the “investigated” and “non- investigated” categories. For formal investigations that resulted in a violation that resulted in a “dismissal” the sub-total was 15 cases (2%).

For formal investigations that resulted in a violation that resulted in “other disciplinary actions” the subtotal was 29 cases (4%). For formal investigations that resulted in a “non-violation” the subtotal was 40 cases (5%). For investigated cases that were “still open” the subtotal was 19 cases (2%). For non-investigated cases which resulted from “non-participation” the subtotal was 451 cases (63%). For non-investigated cases which resulted from “administrative closure” the subtotal was 23 cases (3%). For non-investigated cases which resulted from “no jurisdiction” the subtotal was 101 cases (14%). For non-investigated cases which resulted from “does not meet standard” the subtotal was 50 cases (7%).

5. Conclusion In the end, this thesis found that there was not enough research to determine whether MSU implemented effective Title IX policies and procedures. However, this study is still relevant because it demonstrates the need for further research. Two years’ worth of completely transparent data is not enough to come to a definitive conclusion. Although MSU adopted the “best practices”, as mandated to them by the DOE and OCR, as the amount of cases rose, the amount of violations that resulted in dismissals remained steady at 2% of total Title IX complaints filed in both 2015-2016 and 20162017. At the same time, the amounts of dismissals increased from 9 cases in 2015-2016 to 15 cases in 20162017. Further, as the amount of cases rose, the amount of violations that resulted in other disciplinary actions decreased from 6% in 2015-2016 to 4% in 2016-2017.

At the same time, the amount of other disciplinary actions remained steady at 29 cases in 2015-2016 and 2016-2017. Finally, as the amount of resources were increased, the amount of cases that MSU decided not to investigate rose from 82% in 2015-2016 to 87% in 2016-

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2017. This was an increase of 378 cases in 2015-2016 to 625 cases in 2016-2017. The amount of resources allocated to implementing effective Title IX policies and procedures also had another unintentional effect, it made the recommended policy changes inefficient. As the amount of Title IX complaints filed increased, MSU was increasingly unable to process Title IX complaints, which has since resulted in an 80-day backlog (MSU Today, 2018). MSU’s inability to resolve Title IX complaints within a 60-day period is contrary to Obamaera guidelines which constitutes that Title IX investigations are commonly resolved within 60 days of the filing of the complaint (United States DOE, 2011).

Although, the DOE and OCR have issued new guidance, there are no specific time frames to resolve Title IX complaints, the DOE and OCR still mandate that investigations are completed in a timely and prompt manner (United States DOE Q and A, 2017). MSU has since hired an outside law firm, Kroll, to process the backlog of Title IX Complaints and the influx of new Title IX Complaints arising from MSU’s mishandling of a particular Title IX investigation (Kroll, 2018).

In 2014, MSU mishandled a Title IX complaint that gained national attention for a complaint filed against Larry Nassar, a physician as MSU. Since then, multiple Title IX complaints were lodged against Dr. Nassar which substantially affected the numbers of rape and fondling that occurred in the 2016 time period (MSU Annual Security & Fire Safety Report, 2017). Since most of the complainants could not recall when the rape or fondling occurred, the MSU Police Department included those numbers in the 2016 time period. The 2014 Title IX complaint alleged that Dr. Nassar had “inappropriately touched her” with the investigation concluding that Dr. Nassar’s actions did not constitute a Title IX violation because the incident was “not of a sexual nature” (Davey and Smith, 2018). Following the 2014 Title IX investigation, Dr. Nassar was allowed to return to work under protocols that limited his interaction with patients (but were never enforced by MSU administrators) (Mencarini, 2017). On September 20, 2016, Larry Nassar was fired by MSU after the university received multiple allegations of sexual

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misconduct (Haxel and Mencarini, 2016). On January 24, 2018, Larry Nassar was sentenced to 40 to 175 years in prison after pleading guilty to seven counts of firstdegree criminal sexual misconduct (Cacciola and Mather, 2018). An investigation completed by the Detroit News revealed that MSU has been aware, for at least the past two decades, of similar allegations concerning Dr. Nassar and various other individuals (Kozlowski, 2018). These allegations have put MSU under a spotlight. On January 24, 2018, MSU President Lou Anna K. Simon resigned in response to the Larry Nassar conviction and allegations. On February 26, 2018, the DOE and OCR announced that they would commence a Title IX compliance examination to determine if there was a systematic failure of Title IX policies and procedures resulting from the numerous reports against Dr. Nassar (Devos, 2018). As a result of this new investigation, it is most likely that MSU will once again have to revise its policies and procedures under the direct supervision of the DOE and OCR. The Larry Nassar case has revealed systematic deficiencies in how the DOE and OCR advise postsecondary institutions on what the best practices are in implementing Title IX policies, procedures, and resources when they are not.

Although, this thesis was a single case study of one university experiencing the worst case scenario in implementing Title IX policies and procedures. More research needs to be conducted as to whether what is occurring at MSU is occurring at other postsecondary institutions nationwide. Specifically, more research needs to be completed on how standalone postsecondary institutions handle implementation of Title IX and how postsecondary institution systems, such as the California State University System (“CSU”), handles implementation of Title IX through an even more complex set of rules and regulations. Also, the research conducted for this thesis showed that there are a wide range of opinions on what constitutes effective Title IX policies and procedures. Some of the recommended models include those that are culturally based, which focus in on education that is tailored to minority groups

to preventive based models, where the campus community is constantly educated on the issue.

Ultimately, the main flaw with Title IX is that it is overly broad and ambiguous, and in turn universities have developed Title IX policies and procedures which do not serve the interest of the student. The minimal policy guidance provided by the DOE and the OCR leaves much of the policy and procedure specifics to the university and in turn universities have developed policies and procedures which serve the interest of the university by which Title IX complaints do not turn into a Title IX violation, and thus the university avoids legal action by sweeping Title IX complaints under the rug.

6. Works Cited Anderson, L., & Whiston, S. (2005). Sexual Assault Education Programs: A Meta-Analytic Examination of Their Effectiveness. Psychology of Women Quarterly, 29(4), 374-388.

Block, Jason A. (2012). "Prompt and Equitable" Explained: How to Craft a Title IX Compliant Sexual Harassment Policy and Why It Matters.

College Student Affairs Journal, 30(2), 61-71.

Cacciola, Scott, & Mather, Victor (2018, January, 24).

Larry Nassar Sentencing: ‘I Just Signed Your Death Warrant’. The New York Times. Retrieved from: https://www.nytimes.com/2018/01/24/sports/larryn assarsentencing.html?hp&action=click&pgtype=Ho mepage&clickSource=storyheading&module=phot o-spot-region&region=top-news&WT.nav=topnews Cantalupo, Nancy Chi, & Jordan, Carol E. (2014).

Institution-Specific Victimization Surveys.

Trauma, Violence, & Abuse, 15(3), 227-241.

Coray, E. (2016). Victim Protection or Revictimization: Should College Disciplinary Boards Handle Sexual Assault Claims? Boston College Journal of Law & Social Justice, 36(1), 5990.

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Chmielewski, A. (2013). Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault. Brigham Young University Education & Law Journal, (1), 143-174.

Davey, Monica, & Smith, Mitch. (2018, January 27).

In Nassar Case, Michigan State Wanted Famed ExProsecutor to Both Examine and Defend It. The New York Times. Retrieved from: https://www.nytimes.com/2018/01/27/us/michiganstate-nassar-fitzgerald.html Dinneen, R., Pucci, Thomas, & Kinsey, Thomas.

(2013). A Study of the Factors Supporting Compliance With Title IX and the Barriers Acting as Obstacles to Compliance With Title IX, ProQuest Dissertations and Theses.

Edwards, S. (2015). The Case in Favor of OCR's Tougher Title IX Policies: Pushing Back Against the Pushback. Duke Journal of Gender Law & Policy, 23(1), 121-144.

Ellman-Golan, E. (2017). Saving Title IX: Designing More Equitable and Efficient Investigation Procedures. Michigan Law Review, 116(1), 155186.

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Mencarini, M. (2017, December 20). MSU Let Larry Nassar See Patients for 16 Months during Criminal Sex Assault Investigation. Lansing State Journal. Retrieved from:https://www.lansingstatejournal.com/story/ne ws/local/2017/12/19/michigan-state-larrynassar/964034001/

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Gustavo R. Callejas

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Gustavo Callejas

Gustavo Callejas is a fourth year transfer student majoring in Political Science. During his time at Cal Poly Pomona, Gustavo was an ASI representative of the student body where he spent the past two years lobbying state and federal legislators on behalf of the student body. Some of his major accomplishments include working with various campus organizations and university administration to open up the Bronco Dreamers Resource Center and co-authoring the Title IX resolution “Resolution in Support of Creating Campuses Free of Sexual Misconduct and Sexual Violence” that was adopted by the Cal State Student Association and has since been distributed to the US Department of Education, the CSU’s Chancellor’s Office, and the California State Legislature.

Gustavo will graduate in June 2018 - he hopes to spend the rest of his life fighting for the betterment of his community.

Email: grcallejas@cpp.edu

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PUBLIC LAW Section E

Do attorneys matter: A deeper look at Supreme Court decision-making Kristen Khair *

Abstract The Supreme Court is the ultimate decision maker in determining what laws we follow in our everyday lives, but is the Court’s opinion affected by the parties who present cases to the Court? This paper examines whether attorneys within the last decade have been able to affect the outcome on cases that are partisanly divided in the Supreme Court. This paper will argue that when a politically polarized issue is heard before the Supreme Court the justices are more likely to be influenced by their own previously held political beliefs as oppose to the argument made by the attorneys before the Court. This study uses quantitative analysis, specifically a content analysis, focusing on oral arguments that have been heard before the Supreme Court. Through this analysis, I was able to find that an attorney does not have an effect, especially in cases that are partisanly divided. Justices in the Supreme Court are basing their decisions off of issues they know to be true or off their own interpretation of the Constitution. Therefore, an attorney’s oral argument is not the primary reason for a justice’s decision making. © 2018 California State Polytechnic University; Pomona. All rights reserved Keywords: Supreme Court; partisan; polarized; attorney

——— * Created by Kristen Khair Department of Political Science, California State Polytechnic University, Pomona for her senior thesis project.

Correspondence concerning this research paper should be addressed to Kristen Khair, Department of Political Science, California State Polytechnic University, Pomona, (909) 263-6730. Email: khkhair@cpp.edu Undergraduate Journal of Political Science, Vol. 3, No. 1, Spring 2018, Pp. 209–233. © 2018, Political Science Department, California State Polytechnic University, Pomona

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1. Introduction Many people use pejorative terms to describe the role an attorney plays in American society, yet many neglect to appreciate the fact that an attorney has a more significant impact on politics and policy. For example, when attorneys appear in front of the Supreme Court, they are able to argue about issues that affect our everyday lives, issues that decide what limitations are placed or removed from our constitutional rights.

It is the responsibility of Supreme Court justices to interpret the Constitution. Yet, what forces influence the justices when they interpret the Constitution?

Attorneys appear before the Court to fight for our rights, to defend the Constitution, and argue what is best for society; in some ways, attorneys are our voice in the Supreme Court. But how effective are the attorneys who argue before the Court? Attorneys can argue persuasive cases in front of the Court, but it might have no effect if justices have already made up their mind.

Oral arguments are an important component of Supreme Court cases. Justices allegedly use the oral arguments to question each side of a case and these transcripts are released to the American public for consumption. However, since the Supreme Court is an exclusive club restricted to no more than nine members at a time, justices have a wide array of discretion in how they want to use oral arguments to make their decision. It may be the case that an attorney’s oral argument might not have an impact on justices and oral arguments have merely continued through American history for tradition’s sake. If this is the case, Supreme Court decision-making is a more mysterious process than even scholars currently suggest. As a part of our democratic institutions, oral arguments allow the public to have a tiny bit of ownership in an already obscure process. The Supreme Court has an impact on every single American, whether we notice or not. As Americans are forced to abide by what the Supreme

Court says, we should address how exactly justices are influenced while making their decisions.

This thesis builds on the scholarship of public law scholars to investigate the impact of an attorney’s oral argument in Supreme Court cases. Scholars have long recognized the importance of Supreme Court decisionmaking, as this field of study helps us understand how certain rights and laws are adjudicated. The Supreme Court has had far-reaching effects over the course of American history. However, an attorney litigates at the Supreme Court in order to maintain and fight for the law, the people, and what they believe is best for society. Scholars have paid little attention to the impact attorneys have on decision-making. These attorneys are one of the few people outside the Court who have a direct effect or impact on the justices, they stand in front of the Court and are given a chance to present their case, and no one else is given this opportunity.

While history will remember justices, we pay little attention to the attorneys who have argued in front of the Court. At the broadest level, this research seeks to understand the effectiveness of these attorneys on the Supreme Court. More specifically, within the last decade, are attorneys in the Supreme Court able to affect the outcome of partisan cases?

Before we examine these ideas in depth, a few key concepts must be defined from this question. First, this research examines an attorney’s effectiveness; in order to determine effectiveness, we are only examining the attorney’s oral argument in front of the Supreme Court.

In oral arguments, an attorney argues their side in front of the Supreme Court justices. In terms of this paper, we will not be exploring the state Supreme Courts, only the federal Supreme Court. Lastly, this paper seeks to focus on partisan cases. This simply means these cases are issues that have been typically known to be ideologically split, for example, abortion; both the Democratic Party and the Republican Party have distinct positions on the issue of abortion.

This research directly contributes to the ongoing scholarship on the Supreme Court in two ways. As stated prior, not a lot of research has been done to show that an attorney has or has not had an effect on the

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Supreme Court. This thesis will help advance the literature by advancing a differing perspective. Most literature published today focuses on effectiveness in a broad sense, few articles focus specifically on partisan issues. Also, most articles were written with a focus on Supreme Court cases from the 1990s or early 2000s, therefore not a lot of research is focused on present arguments or present day cases. There is reason to believe that partisanship has drastically affected politics in the last decade and the scholarship needs to be updated in order to reflect that. Furthermore, effectiveness is hard to measure, leaving it open to various different interpretations. The interpretations or study used in this thesis differs from earlier work in that it will be more quantitative. This quantitative analysis can offer more breadth than previous work, taking more issues and characteristics into account.

Ultimately, this thesis hopes to argue that when a politically polarized issue is heard before the Supreme Court, the justices are more likely to be influenced by their own previously held political beliefs as opposed to the argument made by the attorneys before the Court.

Given a cursory look at Supreme Court cases and the opinions we expect justices to hold, it seems that even before a case is heard, we can determine the outcomes of the case based off of the justice’s party affiliation.

We have strong expectations of the ideology held by sitting justices. Scholars and analysts readily identify extreme right to extreme left positions and somewhat successfully anticipate how a justice will vote on an issue. For example, it is widely accepted that Justice Kennedy is more of a moderate and is often the justice that splits the Court’s vote. The fact that we can dissect this information before even hearing the case or the oral arguments should be troubling. This proves, in a sense, that the justices already have their minds made up; in this sense, we may even be questioning the legitimacy of oral arguments.

Of course, justices may very well be influenced by oral arguments, but even in this instance, only in a limited sense. If the justice has a hazy understanding of the facts of the cases that are being presented to them, then an attorney would be able to clear up the confusion

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and, in that sense, have an influence on the opinion or final outcome of the case. The key problem is that a wide amount of information could be presented to the Supreme Court during the oral argument and thus an attorney could just be repeating the facts or law that the justices are already aware of. In this case, the argument can really go either way.

This thesis utilizes a quantitative research design in order to examine whether or not Supreme Court justices are influenced by oral arguments. An original dataset was created for this thesis. The cases for this thesis were selected by looking at the three attorneys who have argued the most amount of time before the Court in the 21st century. These cases were selected because the attorneys who appear the most before the Court will likely hold the most credibility and skill when arguing their cases, meaning they are the most likely to have an impact on the justices. There are 100 cases, that took place from 2006-2016, that will be analyzed and placed into the dataset. This dataset accounted for several variables including how many conservative justices voted yes on the issues vs. voting no, how many liberal justices voted yes on an issue vs. voting no, how many implied questions were asked of the attorney, how polarized the issue was, etc. In order to produce this dataset, the first factor that needed to be determined was the ideological leaning of each justice.

This was done by conducting an online search of each of the justice’s political affiliation. The next main factor was extracting data from the oral argumentation in order to identify whether each attorney is being asked a question with an implied answer. An implied question is a question that does not seek an answer meaning that despite what the attorney responds, the justice already has a defined point of view on the matter. Examples of implied questions include questions that start with “wouldn’t you agree” or “I am right in saying” and questions that end with the words “right” or “correct.” If the attorney is asked more implied questions, then this is an indication that the attorney is most likely not having an effect on the justices. This is because implied questions illustrate ideas that the justice already held before hearing the

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oral argument. Lastly, data is collected to compare the oral arguments of the attorneys with the Court’s written opinions to see if any similarities exist between the two and if so, then how many. This data collection will include both partisan issues as well as nonpartisan issues to see if a difference is present and how significant that difference is. In order to determine partisanship, the political platforms of the Republican and Democratic parties will be examined to see whether they have a stance on the case being examined by the Court. If there is a clear opinion on a certain

issue then that issue will be ranked based on the parties’ beliefs, if there is not then that issue will be nonpartisan.

At the conclusion of this study, we hope to find that in partisan issues an attorney’s influence is nonexistent or at best very minimal and weak; proving that the Supreme Court may be biased on partisan issues.

Before embarking upon the study, we must first take a look at what existing scholarship has said about the Supreme Court, attorneys, and decision-making.

2. Literature Review The impact of the Supreme Court has been widely examined in existing literature. This literature review will specifically outline three key understandings of a Supreme Court justice’s decision-making: the attitudinal model, the legal/professional model and the rational choice model. Scholars have developed these models to examine and help summarize how justices have decided on cases throughout history. The second section of the literature review will examine factors the literature highlights in terms of what forces can potentially affect a justice’s opinions. This section will discuss three factors: amicus briefs, solicitor generals, and attorneys. Finally, in the last two sections attorneys will be examined in terms of how effective they are in cases that are divided amongst partisan lines and those that are not. The literature presented will demonstrate ideas that both help advance and argue against the perspective of this thesis. The argument of this paper is that an attorney has a lack of an effect on the Supreme Court justice’s opinions when the issue being argued is partisan.

2.1 Models of Supreme Court Decision-Making There are three key models that previous studies have utilized in terms of analyzing Supreme Court decision making: the attitudinal model, the

legal/professional model, and the rational choice model. Cases are constantly selected and heard in front of the Supreme Court. Political science has analyzed these cases in the formulation of these three methods.

Some theories have been more deeply analyzed and researched than others, but a brief understanding of each of these theories is necessary in order to gain an insight into what the justices will consider when ruling one way or another.

The first model, the attitudinal model, states that judges decide cases in terms of their ideological attitudes and biases to reach a conclusion or outcome for the case presented to them (Seamon 548). In a sense, this model is constructed from a mix of various ideas including legal realism, political science, psychology, and economics (Segal 86). It is believed that these justices gather their ideological beliefs from their peers and the environment they grew up (Seamon 548). The attitudinal model can be proved by the fact that cases that contain federal questions are seldom representative of the public opinion or the public’s desired outcome (Segal 89). This model was established by Gledon Schubert when he decided to use psychology in order to create the attitudinal model.

Gledon wanted to find a way to scale the justice’s ideology in terms of their values and the cases

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presented in front of them (Segal 88). The study focuses on the fact that the Supreme Court controls their own docket and no case is presented in front of them unless they choose to have it be presented in front of them (Segal 88). Justices are believed to pick cases that most align with their ideological beliefs and refuse ones they see as meritless cases (Segal 88). An example of this model is if Justice Gorsuch votes on a case, we would expect him to vote conservatively due to his extremely conservative beliefs. In terms of this paper, the attitudinal model could be an accurate predictor of Supreme Court decision making and it would further explain the lack of effect of an attorney’s oral arguments.

The second model, the legal/professional model of decision-making, argues that judges use facts and law in order to decide the outcome of the case. In this sense, “judge’s decision-making process is shaped by their legal training, which includes traditional principles of logic, constitutional and statutory interpretation of the law” (Seamon 550). This model states that justices are coming to their decisions based on the facts of the case, on precedent, plain meaning of the Constitution and the intent of the Framers (Segal 86). The legal/professional model has not been studied to a deeper extent due to the criticism that this model has received. An issue with this model is that it uses the fact that litigants/attorneys have precedent when arguing a case, but justices also rely on precedent in their decision making (Segal 86).

This model is not a helpful measure of how the justices are coming to their decision because it references an overlap between the attorney’s argument and the justices both using legal precedent.

The last model in terms of judicial decision-making is the rational choice model. Rational choice is weighing cost and benefits against one another to determine what is better for the people, as well as the society. This looks at decisions in a way that derives mathematical and/or logical deductions (Segal 110).

The goal for this model is to find the equilibrium of an outcome, meaning that the justices find a decision that is at the maximum point of equally pleasing society, as well as individual citizens (Segal 110). This model can

be divided into two groups of scholars: those that have become known as internal camp and those known as the external camp. The internal camp “focuses on the interactions among the justices” (Segal 111). The external camp “focuses on constraints imposed on the Court by other political actors” (Segal 111). Some criticisms of this theory is that this type of decisionmaking cannot be directly observed, it is just merely assumed that a justice would feel unethical from choosing an outcome that would negatively affect our society (Segal 112). Furthermore, the rational choice model has not derived any actual equilibrium solutions and justices do not always choose what is best for our society (Segal 112). Due to the lack of research we have on this model, it is hard to determine if the rational choice model actually explains justices’ decision making.

In terms of these three models, we begin to see a basis of what could potentially be impacting a justice’s decision-making when it comes to voting on any given case. However, there are definitely other factors that might potentially influence Supreme Court justices in how they make decisions.

2.2 Other Factors that Influences the Court The Supreme Court can be influenced by a number of different factors including public influences, amicus curie briefs, and arguments from the solicitor general.

These influences must be examined because if these play a viable role in helping a justice come to their decision, then it makes it more likely that an attorney will not have any type of effect on the ultimate decision of the justice.

In regard to the public influences, or public opinion, we can see that some scholars argue that public opinion has a strong indirect effect on the Supreme Court justices. Public opinion plays an influence on what cases the Supreme Court chooses to hear and what the court decides to rule on such cases (Mishler 167).

Supreme Court justices are not accountable for their rulings, giving the justices freedom to fluctuate between decisions on similar cases (Mishler 174). The Supreme Court’s fluctuations coincide with the rapid

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shift in public opinion (Mishler 175). Therefore, there is evidence that suggests the justices are not being influenced by an attorney’s oral arguments, but rather the changes in public opinion.

Boucher disagrees with this view. Boucher argues that justices are not “strategic policy-minded decision makers” (826). In certain cases, justices consider their outside environment, public opinion, etc. as a means for deciding case outcomes but that seldom occurs.

Most of the time, justices are reliant on their already held beliefs or the idea of being nonstrategic (Boucher 826). This idea of being nonstrategic indicates that some justices are more likely to side with the lower courts, as oppose to the individual seeking an appeal (Boucher 829), showing a disregard of public opinion.

Amicus curiae briefs can also be explored as having an effect. Justice Scalia views amicus curie briefs as a representation of the public’s opinion and the outcome the public prefers. Amicus curiae briefs can be written by someone in the legal profession or by a citizen and sent to the court. According to a few sources, the effectiveness of amicus briefs are very limited (Nicholson 23). Kearne states that amicus briefs were very rare in the early centuries of the Supreme Court but that today oral arguments by attorneys have been shortened and amicus briefs have become more common (743). This literature therefore argues that the shortening of an attorney’s oral arguments did not have an effect on the Supreme Court, but that the greater amount of amicus briefs being submitted did (Kearne 745). Research states that an amicus curie brief, “presents an argument or cites authorities not found in the briefs of the parties, and these materials can occasionally play a critical role in the Court's rationale for a decision” (Kearne 757). Yet, this is not an accepted fact. Certain justices have spoken out about this; for example, Chief Judge Richard Posner believes that amicus curie briefs have little to no effect on the justice’s choice or outcome. According to Shapiro, the clerks in the Supreme Court offices agreed that many amicus curiae briefs are a waste of time and money (22). The Court receives hundreds of amicus briefs every day and most do not contain useful information.

More often than not, these briefs either talk about issues far removed from the court, or they file a onepage brief that contains limited useful information to the court (Shapiro 22). It is also argued that state attorney generals are frequent filers of amicus briefs, yet they still have a limited effect as Supreme Court justices rarely view these briefs and do not include them in their arguments (Nicholson 23).

In terms of other forms of effectiveness, “the Solicitor General, is the most successful advocate to appear before the Court; in fact, the Solicitor General’s office wins well over 70 percent of the cases in which the government participates” (Wahlbeck 104).

Therefore, an attorney might not have as much of an effect as we believe, since the Solicitor General accounts for most of the success in these Supreme Court cases.

On top of all this, literature suggests that justices might not be influenced by any one individual. Rather, it is argued that the justices are only relying on the Constitution to make their decisions; not any outside forces (Mason 1387). But is this accurate? According to existing literature, it has been determined that the effect of amicus curiae briefs can be put aside (McGuire 188). Yet, before we assume the justices are not being influenced by a single person, we need to look at the impact attorneys have.

2.3 The Effectiveness of Attorneys on Partisan Issues The main focus of this paper is on the effect of an attorney before the Courts, specifically the oral argument that the attorney presents to the Court. This section seeks to extract information from existing literature to demonstrate that an attorney is having an effect on the Supreme Court justice’s opinions.

Some literature suggests that an attorney’s oral argument does have an effect on the Supreme Court justices, however this effect differs in significance. A justice’s position fluctuates constantly throughout the process of a case before they cast their final vote and therefore the vote can be influenced by an exogenous force (Ringsmuth 433). Oral arguments can play a role in case outcome for several reasons. First, oral

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arguments can assist justices in understanding complex legal or factual issues (Wahlbeck 99). Written briefs or decisions filed in the lower courts can be confusing at times. Therefore, an attorney’s oral argument can help clear that confusion and provide a better analysis of the case (Wahlbeck 99). According to Wahlbeck, “justices often face uncertainty, and they need information about a case and the law in order to set policy in ways that will promote the Justice’s goals” (100). Justice Brennan has said that, “often my idea of how a case shapes up is changed by an oral argument.” Justices therefore do not always have their minds decided when they are presented with oral arguments; oral arguments are needed in order to demonstrate new information that a justice was not aware of before (Wahlbeck 100).

Based off of McAtee’s analysis, we can assume that the more a justice lacks knowledge on an issue, the greater the justice will be able to be persuaded and affected by the attorney’s argument (271). Oral arguments do serve a purpose in the Supreme Court as “they provide justices a unique venue from which to seek novel information and then for justices to use that information to inform their conclusion” (McAtee 271).

The arguments that are presented to the Supreme Court usually sway justices into moving to side with the majority opinion but a bad oral argument can help push a justice to a certain direction as well (Ringsmuth 436).

There are some key factors however that make an oral argument have a greater effect. For example, how an attorney presents their position during their oral argument is key to the outcome they receive from the justices (Wahlbeck 107). Furthermore, an attorney’s credibility is said to affect the attorney’s performance in front of the justices. According to Wahlbeck, “in the context of the Supreme Court, a key indicator of credibility is the litigating experience of a lawyer, especially the extent to which he or she has appeared before the Court in the past” (107). An attorney’s credibility can also be influenced by their educational experience as an attorney who went to a top law school is more likely to receive “respect” from the justices and therefore have a greater impact (Wahlbeck 109).

Therefore, the more credibility an attorney has the

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more likely they are to have a stronger effect on the justices.

Some attorneys try to take a different route and instead of using credibility and the facts of the case, they use rhetoric and wisdom in order to draw the justice’s attention and persuade them through their oral arguments (McAtee 259). Attorneys understand that Supreme Court justices need a variety of information in determining which way to vote. At the same time however, using wisdom does not mean that an attorney is securing a justice’s vote, but rather they are creating a way for the justice to understand this issue in a different light (McAtee 262).

In another view of attorney effectiveness, McGuire argues that “the justices are ultimately concerned with uniformity in federal law, the ramifications of their decisions for public policy” but “in the dialogue over such issues it is lawyers who help give them voice” (189). The purpose of oral arguments is for justices to be able to learn about facts that they do not know. Most of the time, justices have a deep understanding of the law being used, but not as much is known about the facts (Jackson 802). The way these facts are presented determine if an attorney will have a greater impact on the ruling.

Specifically looking at cases dealing with partisan issues, we see that scholars take different views on the subject. If a justice’s ideology was taken into account, then we would see an attorney’s oral arguments only plays a small role; that impact would be mainly from the attorney’s previous experience in the court and based off merit (Wahlbeck 106). Literature has shown that when a justice is supportive of an issue that aligns with their ideology, it is possible for them to be influenced by an attorney’s oral argument (Wahlbeck 107). If the attorney provides a higher quality oral argument than their opposing side, then there is an increased probability that that attorney could sway a justice’s vote (Wahlbeck 107). In this sense, an attorney would have an effect, even though the cases may be partisanly divided.

Looking at all the literature presented above, an attorney would have the potential to change various

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case outcomes in the Supreme Court through their oral argumentation.

2.4 The Ineffectiveness of Attorneys on Partisan Issues Literature has conversely argued that attorneys do not have an effect on a Supreme Court case outcome.

We have seen throughout time that changes have occurred in the Supreme Court and one of those changes is the shortening of the amount of time an attorney gets for an oral argument. Scholars have assessed this and found that this does not have a dramatic effect on the outcome of a case (Kearney 746).

Scholars believe that lawyers do not have an effect because in order for an attorney to be effective, they must possess specific qualities. For example, lawyers must be able to argue cases off memory, avoiding nervousness or stumbling upon their sentences (Jackson 801). This is difficult to accomplish with the justices constantly asking questions that the attorney may not have anticipated and thus the attorney may not be able to play a significant role in deciding the outcome of the case. Attorneys also complain about the line of questioning they receive from the justices (Jackson 801). All this combined reinforces the ineffectiveness of attorneys in the Supreme Court.

Justices also select what cases they want to hear and therefore tentative opinions or inquiries about how they feel about the case will present themselves before an oral argument has taken place (Jackson 801). Most of the time, the justices stick with their original instinct, meaning that the attorney does not hold any persuasive power over the decision (Jackson 801). The justice can however, use the language in the oral argument to formulate their written opinions.

Justices do not give lawyers a lot of time to argue and the fact that lawyers are not given enough time is a representation of “justices growing disdain for oral arguments” (Wrightsman 14). Some justices no longer find these oral arguments useful but rather they see them as an unnecessary step in the Supreme Court proceedings (Wolfson 452). Wolfson did a test and

found that about 0-20% of the time, oral arguments can influence a justice to change their mind (452). The problem is that this change occurs on a performance base, and not so much on the basis of the argument itself (Wolfson 452). For example, “oral arguments performed effectively are of crucial significance—that they positively contribute to the decision-making process” (Mosk 62). Wikstorm agrees, believing that lawyers are underfunded (360). It is argued further that lawyers are therefore ineffective and cannot satisfy what is expected of them in the Supreme Court level (Wikstorm 360).

Valerie Hoekstra argues that the Supreme Court is focused on lower court decisions rather than what the attorney says in their oral argument (320). The Supreme Court makes an opinion before the oral argument even occurs, as they are given all the facts and legal issues beforehand (Hoekstra 321). Most of the time, the lower court is concerned about being overturned by the Supreme Court (Hoekstra 321).

Some courts try to write very detailed records, where they try to include all necessary arguments for the Supreme Court (Hoekstra 321). By doing this, the Supreme Court is able to use these written arguments to come to a decision before hearing an attorney’s oral argument, thereby making them ineffective (Hoekstra 321). According to Lucas, counsel is extremely ineffective in the Supreme Court (220). It was found that attorneys are not able to anticipate what is going to be asked of them, their nervousness kicks in, and they are unable to grab the justice’s attention (Lucas 220).

Furthermore, the attorneys who get sent up to the Supreme Court are supposed to be some of the best attorneys. Our standard of an attorney is extremely low because we expect attorneys to use notes and to not be as prepared as they should be (Lucas 221). But because our expectation of attorneys is so low, the attorneys before the Supreme Court are not as good as they should be (Lucas 221).

The way an attorney presents their oral arguments is frequently attacked. Frost found that “the justices today are more likely to speak harshly, as well as make more jokes than they did in the past, and the justices are

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better prepared in terms of questioning the oral arguments” (1). Furthermore, justices indicate in their questions what side they stand on and whether or not they disagree with the majority and this shows that the justices have already formulated an opinion on the case before even hearing the attorney’s oral argument (Frost 1). This further supports the idea that the attorney does not have an impact. It is also argued that “oral arguments are less about addressing the legal merits and more about feeding DC journalists’ needs for sound bites and quotes for their daily articles” (Frost 1).

In terms of partisan issues, it has to be admitted that even when a justice bases their decision on their ideology or their preference for a policy, they often do so while taking in other information to support their beliefs (McAtee 260). The literature in this sense shows that an attorney has a very minimal to no effect on the justices (George 323). A justice also determines what side they will most likely be on based on what decision most closely aligns with their ideological beliefs. This is, more often than not, decided before any evidence is heard (McAtee 279). In this sense, an attorney would lack effectiveness, particularly in partisan issues. Examining the literature in this section, we see a different view. The literature indicates that an attorney has limited to no effect in influencing the Supreme Court case outcomes.

In conclusion, there are many potential impacts on the Supreme Court’s decision making, as well as different reasons as to why an attorney can be effective or ineffective in impacting a justice’s decision on a case. Partisan issues also come into play here because we have seen that when justices decide their own docket, they do so based upon their ideological beliefs.

Through this study, we hope to find that the attitudinal model is widely used in justice decision-making and that when a partisan case is placed in front of the Supreme Court, attorneys will have minimal to no effect on the outcome.

3. Methodology This thesis uses a quantitative research design to determine whether or not an attorney’s oral argument has an effect on Supreme Court decision-making.

Specifically, this study utilizes a content analysis. A content analysis is the process of collecting quantitative data derived from a written source or text.

This content analysis uses oral arguments and the written decisions of the Court as the written source or text. This methodology, however, is not able to account for everything the justices review in coming to a decision. Despite that, it does adequately assess an attorney’s effectiveness before the Supreme Court. In order to conduct this analysis, several variables had to be accounted for and these variables will be discussed below.

This study examined one hundred Supreme Court cases that took place between 2006-2016. These cases were selected on the basis of which attorneys had most frequently argued in front of the Supreme Court. It has been noted in the literature review that attorneys who argue frequently in front of the Court have more credibility and more experience. These attorneys are thought to have the most effect in the Supreme Court.

Knowing this, I collected cases from the three attorneys that have most frequently appeared in the Supreme Court during the 21st century. The three attorneys I looked at were: Paul D. Clement, Edwin S. Kneedler, and Michael R. Dreeben. Ultimately, the analysis includes 47 cases argued by Clement, 35 by Kneedler, and 16 by Dreben.

The 100 cases were then coded on a variety of different dimensions. The analysis first explores how the justices had voted on a specific case. The justice’s votes are separated into several variables: ConservativeYES (how many conservative justices voted in favor of the decision), ConservativeNO (how many conservative justices voted against the decision), ConservativeTOTAL (the total number of conservative justices on the Court at that point in time). Similarly, the analysis codes the same information for the liberal justices of the court through the variables LiberalYES,

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LiberalNO, and LiberalTOTAL. The ideology of the justice was determined from the classification developed on a webpage called “InsideGov” and the way they voted was accounted for by looking at the case on “OYEZ.” The next variable collected examines what side the Court had favored in each individual case. In each case, the Supreme Court could side with either the appellant/respondent or appellee/petitioner. For this variable, a “1” was assigned to the appellee and a “0” was assigned to the appellant. This variable was coded in order to aid in coding the polarization of the issue.

The next group of variables collected in the data set were the similarities between the oral argumentation given by the attorneys and the opinions written by the Court. This variable is relevant in the analysis of this thesis, because the more ideas a justice’s ends up adopting from an oral argument, the more effect an attorney will have. The data for this variable is divided into three sections: the similarity between the oral argument and the majority opinion, the similarity between the oral argument and the concurring opinion(s), and the similarity between the oral arguments and the dissenting opinion(s). This data was collected by running a similarity test on the oral argument and each individual opinion, using a website known as “copyleaks.com.” This comparison produced two numbers, the percentage of text copied, and how many chunks of text appeared to be similar. These were coded as MajorityWord and MajorityPercent, ConcurringWord and ConcurringPercent, and DissentingWord and DissentingPercent. Again, this variable is designed this way because if the attorney had an effect on the Court then that effect should be evident in the similarity between the oral argument and opinion. Therefore, if these three attorneys are indeed successful in the manner we believe them to be, the attorney’s argument should show up in the Court’s opinions more frequently than not.

The fourth set of variables collected for this study involves the questions that the Supreme Court justices asked the attorneys while they were presenting their oral arguments. The questions were specifically coded

to determine how many questions had an implied answer. A question with an implied answer has a truth value already in the question. Usually, the person asking a question with an implied answer already has a defined perspective on the issue at hand. Therefore, no matter what the attorney responds, the justice would already have a defined point of view on the issue. These questions involve questions that end in “isn’t that right?” or “you would agree with me when I say…”

Again, the idea behind recording the frequency in which these questions appear is that if the attorney is consistently asked questions of this nature, then their effect is likely to be low. This is because the justices would already have a developed opinion on the issue being presented. In this light, we expect that cases that are partisanly divided would have a higher number of implied questions. This data was coded as the following variables: AppellantQuestions (the total number of questions that were asked the appellant attorney), AppellantImplied (the number of implied questions asked to the appellant attorney), AppellantNotImplied (the number of questions asked that did not have an implied answer to the appellant attorney), AppelleeQuestions, AppelleeImplied, AppelleeNotImplied. This data was collected by looking at transcripts of the oral arguments online and assessing how justices responded to both the appellee and appellant. I did a search to find every single question asked by the justices during both attorneys’ argument. Once I had a complete list of the questions asked during the argument, I read through each question and determined if the question seemed to have an implied answer or not. This variable is slightly subjective, as I tried to use my rational based opinion in selecting what was considered implied and not, but there is no set standard for how to determine something of that nature.

The fifth and final variable I collected is the IssuePerspective. This variable codes what ideological side the majority of the Court was more likely to lean towards. For example, one issue presented in front of the Court, in District of Columbia v. Heller, was if

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being required to have only non-functional guns in your home is a violation of the 2nd amendment.

Now this case seems to have an issue that if you vote ‘yes’ this is a violation of the 2nd amendment. This would be a perspective that many conservatives might hold, therefore it would be classified as a conservative issue. The way the data is coded, a liberal issue receives a ‘0’, a non-partisan issue receives a ‘1’, and a conservative issue receives a ‘2’. An example of a nonpartisan issue includes issues that the majority did not share ideological consistency on, such as attorney fees or if a case fell under the correct law when it was argued in the lower courts. This test is also slightly subjective, as I used existing knowledge on the two party’s beliefs, as well as the two party’s platforms that I found online. However, there is a possibility for disagreement on certain issues.

The measurement of an attorney’s effectiveness in the Supreme Court is extremely hard to measure. In order to gain accurate results, the data tried to account for the main factors that would demonstrate an attorney’s effectiveness. While this study does not take into account every possible thing that the Court may consider, it still takes many variables into consideration. These variables and their influences are discussed in the results section below.

case. I decided to run a one-way ANOVA between issue polarization and the way the justices were voting.

The second test that I ran was a chi-square test between issue polarization and whether or not the case yielded a unanimous decision. The last test that I ran that examined the justices votes was a chi-square test between issue polarization and what side the justices favored, whether it be the appellant or appellee attorney. The next issue I wanted to tackle was the attorney’s role in effecting the justices. In order to do this, I ran a one-way ANOVA between issue polarization and the percentages/words that appeared to be copied between the oral argumentation and Court opinions. The last variable I looked at was the questions that were being asked of the attorney during the oral argumentation. The charts and graphs I created are referenced and explored deeper below.

Chart 1.1: Issue Polarization Frequency Table Frequency

Percent

Liberal

28

28%

Neutral

43

43%

Conservative

29

29%

Total

100

100%

Graph 1.1: Histogram of Issue Polarization 4. Results This section supports the argument posed in this paper, which is, that an attorney will not have an effect on Supreme Court decision-making when the issue is partisanly divided. In order to see if this argument has standing, I ran several tests on the variables collected in my data set. One of my most important variables used was issue polarization. Issue polarization when tested against another variable allows us to determine whether or not that variable is being influenced by the partisan divides of a case. The results were broken down by first looking at characteristics about individual variables. The first issue I wanted to examine was how the justices were voting on any given

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Issue polarization is the variable that I used in all of my tests. I first wanted to see how many cases out of the hundred that I found were either a liberal, neutral or conservative issue. Above, in chart 1.1, we can see a frequency table which depicts the number/percentage of cases that were either liberal or neutral or conservative. Looking at this frequency table, we can see that most of the cases that were collected were neutral or non-partisan cases. Specifically, 43% of cases in my complete data set were neutral, while only 28% were liberal and 29% were conservative cases. I

also created a histogram to better illustrate these findings.

This histogram represents the amount of cases that were liberal, the amount that were neutral/non-partisan and the amount of cases that were conservative.

Looking at this histogram, we can see the same finding as above. Most of the cases that were selected were classified as neutral/non-partisan case, while there were less liberal and conservative cases picked. The importance behind this histogram is that if an attorney is having a limited effect, then we should expect to see the liberal and conservative cases result in split

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decisions while the neutral cases result in unanimous decisions.

justices might be voting based on another influence and not just their political identifications.

Chart 1.2: Unanimous v. Split Decision Frequency Table

Chart 1.3: Side Picked Frequency Table

Frequency

Percent

Split Decision

71

71%

Unanimous Decision

29

29%

Total

100

100%

Before going into specific tests, I also wanted to look at how many of the cases I looked at had a spilt decision versus a unanimous decision. If the cases are likely to be influenced by the justices already held political beliefs, then we should expect to see less split decisions because a majority of the cases collected were neutral cases. Looking at chart 1.2, we can actually see that most decisions are split decisions.

Specifically, 70.8% of the cases that I used in my data set were split decisions, while 29.2% were unanimous decisions. We could once again look at a histogram for a better understanding.

Graph 1.2: Histogram of whether or not decision was unanimous Above right we can see a histogram of whether or not the decision was unanimous or split in a case. We can see similar findings to those listed above, that is, that we are more likely to run into a case that is a split decision as oppose to a case that is unanimous. This is very interesting considering a lot of our cases were non-partisan. This histogram could indicate that the

Frequency

Percent

Appellant

63

63%

Appellee

34

34%

Per Curiam

3

3%

Total

100

100%

Above we can see a frequency table which depicts the amount of cases that the justices had voted for either the appellant or appellee attorney. Some cases however were per curiam opinions which means that no justice signed the opinion and the opinion was made by the court. No side is specified in these opinions.

Looking at chart 1.3, we can see that 63% of the cases were in favor of the appellant attorney, therefore over half the cases that were decided were decided for a specific side. Also, we can see that 34% of the cases were in favor of the appellee attorney while only 3% of the cases were per curiam opinions. The importance behind this is to see if any side is more partisan than the other side as well as to see if a specific attorney is having more of an influence. This can once again be demonstrated more visually in a histogram graph.

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Graph 1.3: Histogram of Side Picked Looking above right, we can see a histogram of the side that was picked by the justices in each case they heard. This histogram is just a demonstration of the frequency table that was depicted above. It shows, once again, that most of the decisions made by the courts were in favor of the appellant attorney, while not as many were made in favor of the appellee.

Chart 1.4: Descriptive Statistics of Argument v. Opinion

Majority Word

Majority Percent

Concurring Word

Concurring Percent

Dissenting Word

Dissenting Percent

Mean

25.94

.241

11.20

.088

26.50

.279

Median

18.00

.100

7.00

.000

16.00

.100

Std. Deviation

25.587

.3118

15.551

.2669

30.844

.5509

Range

117

1.0

98

2.0

195

4.0

Next, we can look at characteristics of the variables where an attorneyâ&#x20AC;&#x2122;s oral argumentation was deeply examined. First, we can look at a descriptive statistics of how much of the attorneys oral argument was used in the majority, concurring and dissenting opinions. In chart 1.4 we can see a standard descriptive statistics table,

which accounts for several variables. These variables include the words that were the same between the oral argument and opinion, as well as the percentage of text that was copied. This table, indicates the mean, median, standard deviation and the range for all of these variables. Looking first at the amount of the oral

Kristen Khair

argument that was used in the majority opinion, we can see that the mean for the amount a text that was copied is 25.94. This means that the average amount of text being copied is about 26 chunks of text. Looking at the percentage for the majority opinion as well, we can see that the mean is .241, meaning that the average percent is only .241% of copied text between the two documents.

Next, we can looking at how much of the oral argumentation matched with the concurring opinion.

One thing to note is that the concurring and dissenting opinions are missing some numbers because there are times where the justices do not concur, or times where there is no dissenting opinion, such as in the case of a unanimous decision. When looking at the concurring opinion, we can see through the mean that the average number of words being copied is 11.20 words, while the percentage is .088%. This is interesting because these

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numbers are much lower than that recorded by the majority opinion. I assume that the reason for the decline in the amount of similarities between the oral argument and concurring opinion is due to the fact that justices write a concurring opinion because they agree with the majority vote but have a different reason for agreeing. I assume that this different reason, is based upon something the justice had previously encountered and knew, and was therefore not as affected by the attorneyâ&#x20AC;&#x2122;s oral argumentation. The last thing to note is the dissenting opinion. We can see in chart 1.6 that the average amount of chunks of text that were copied were 26.50. The percent that was copied was .279. This is more expected as the dissenting opinion has similar numbers to the majority opinion. The spread in all these variables can better be illustrated using graphs.

Graph 1.4: Histogram of Majority Word

The graph above shows the distribution of the amount of text that was copied between the oral argumentation and the majority opinion. Specifically, it looks at word and not the percentage count. Looking at this graph, we can see that the cases are concentrated between 0-30

chunks of text copied. We can also see that there is an outlier that is close to 120 words copied.

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Graph 1.5: Histogram of Dissenting Word This histogram graph above is similar to graph 1.4, but this is taking the dissenting opinion into account instead of the majority. Looking at chart 1.8 we can see a completely different distribution, with almost all of the cases concentrated from zero to 70 words. We can also see the outlier that exists here as well, this one is almost up to 200 words being the same between the opinion and the attorneyâ&#x20AC;&#x2122;s argumentation.

Chart 1.5: Descriptive Statistics of Questions Asked to Attorney Appellant Question:

Appellant Implied

Appellant Not Implied

Appellee Question:

Appellee Implied

Appellee Not Implied

Mean

39.96

8.960

31.00

38.83

7.65

31.38

Median

36.00

8.000

28.00

37.00

7.00

29.00

Std. Deviation

18.797

5.7681

15.220

21.713

6.061

16.803

Range

128

46.0

88

207

55

153

Above we can see a standard descriptive statistic that shows the mean, median, standard deviation, and range of the questions that were asked to both the appellant and appellee attorneys. First, looking at the appellant attorneys we can determine that the average number of questions the appellant attorney is asked is 39.96, or 40, if we round it. Out of those 40, the average number of implied questions that the appellant attorney is asked is 8.96, or 9 questions. Looking at the average number of not implied questions that the appellant attorney is asked, we can see that that number is 31. Next, we can

look at the total number of questions that are asked to the appellee attorney. Based upon the mean, we can determine that the total number of questions the appellee attorney is asked are 38.83, or 39. Out of those 39 questions, on average 7.65 of them are questions that have an implied answer and are being asked to the appellee attorney. In terms of the average of not implied questions, we can see that there were 31.38 questions.

This is interesting because if the justices are voting on party lines then we should expect to see more implied questions being asked of the attorney.

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Chart 1.6: One-way ANOVA between issue polarization and justice votes F-Value

Significance

The number of conservative justices who voted YES

11.390

.000

The number of conservative justices who voted NO

13.087

.000

The number of liberal justices who voted YES

40.122

.000

The number of liberal justices who voted NO

41.144

.000

When I started comparing variables, I first conducted a one-way ANOVA between issue polarization and the way that the justices are voting. The purpose of this, was that if the justices are voting on their party lines, then we should expect to see a significance between the way they vote and the polarization of the case that is being heard before the Courts. In conducting this ANOVA, we can see that in chart 1.6, there is a significance between all of the variables. If we look at chart 1.6, then we can note

that the significance value for all these variables is .000.

This indicates that there is a 0% probability that this relationship is due to chance. Since the significance value is lower than .05, we are able to say that there is a significance that exists between these two variables.

Meaning there is a significance between ConservativeYES, ConservativeNO, LiberalYES and LiberalNo, when put against the issue polarization in each case.

Chart 1.7: Chi-square between Issue Polarization and Unanimous Variable Value Pearson Chi-Square

10.687

The next test that was conducted was a Chi-Square test. This test is used to measure two nominal or ordinal variables. In this case, we are comparing issue polarization and whether or not an issue will yield a unanimous vote or not. The idea behind this test is that if the justices are likely to vote on party lines, then we should expect to see that most polarized issues are split decisions, whereas most neutral or non-polarized issues

Asymptotic Significance (2-sided) .005

are unanimous decisions. The first thing I did was run a chi-square test. Looking at chart 1.7, we can see that the value yielded by this test indicated that the significance value was .005. This means that there was a .5% probability that this relationship was due to chance.

Therefore, there was a significance between issue polarization and whether or not the decision was unanimous or not.

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Chart 1.8: Cross Tabulation of Issue Polarization and Unanimous Variable Liberal

Neutral

Conservative

Split-decision

18 (25.7%)

25 (35.7%)

27 (38.6%)

Unanimous decision

10 (33.3%)

18 (60%)

2 (6.7%)

The next thing I did was create a cross tabulation to actually see how many cases fell into each category: liberal, neutral, and conservative, when analyzed with whether or not the decision was split. Looking at the chart up above, we can see that most split decisions are likely to be conservative. The chart indicates that 38.6% of split decisions are conservative issues. In terms of

unanimous decisions, we can see that 60% of unanimous cases are likely to be a neutral or non-partisan issue. This chart is important because it makes it more likely that justices are voting on party lines since the split decision are polarized issues, whereas the unanimous are likely to be non-polarized.

Chart 1.9: Chi-square between Issue Polarization and Side Picked

Pearson Chi-Square

Value

Asymptotic Significance (2-Sided)

7.349

.119

I wanted to look at whether or not the side that the attorney voted for was changed at all by the polarization of the case. In order to do this, I ran a chi-square test between issue polarization and the side that was picked.

As we can see in chart 3.1, the asymptotic significance

is .119. This means that there is an 11.9% probability that this relationship is due to chance. This is enough for us to conclude that there is no significance between issue polarization and the side picked.

Chart 2: One-way ANOVA between Issue Polarization and Word similarities in Opinions F-Value

Significance

Majority Word

.453

.637

Concurring Word

1.629

.205

Dissenting Word

.327

.722

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After running those two tests, I started looking at the variables that were meant to show whether or not an attorney had an impact on Supreme Court decisionmaking. The first variable that I looked at was the comparison between the opinions made by the Courts in terms of word count. The idea behind this test was that if an attorney is not going to have an influence then

we should expect to see that less of an attorneyâ&#x20AC;&#x2122;s oral argumentation is used in the Courtâ&#x20AC;&#x2122;s opinion, especially when the case is polarized. Looking at chart 4, we can see that there is no significance between the MajorityWord, ConcurringWord and DissentingWord, when looking at it against issue polarization.

Chart 2.1: One- way ANOVA with Issue Polarization and percent similarities in Opinions F-Value

Significance

Majority Percent

.469

.627

Concurring Percent

1.335

.271

Dissenting Percent

.443

.644

When collecting my data, I noticed there was a big difference between the percentages of texts being copied versus the word count. Due to this factor, I wanted to also run a test between the percentages and the issue polarization of the cases. I ran a one-way ANOVA which indicated similar findings as above. If we look at chart 2.1 we can see that none of these values are significant.

In terms of the Majority Percent, we can see that the significance value is .627. This means that there is a 62.7% probability that the relationship between the majority percent and issue polarization is due to chance.

This is an extremely high percentage and therefore, we can conclude that this relationship is not significant.

Similarly, we can see a reoccurring trend with the other values. In terms of Concurring Percent, we see a significance value of .271. While this number is substantially lower than the one above, it is still not within our .05 threshold of being significant. Lastly, looking at the significance value between the Dissenting Percent and the issue polarization we can see that this value is .644, thereby demonstrating that a significance does not exist here either. This goes to show that there is no significance between the amounts of text being copied from the oral argument to the opinion when placed against issue polarization.

Chart 2.2: One-way ANOVA between Issue Polarization and Appellee Not Implied

Questions that were asked to the appellee that were NOT implied

F-Value

Significance

1.019

.464

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The next set of variables I examined, were the questions that were being asked of the attorneys. In chart 2.2, we see a one-way ANOVA between the questions that were asked to the appellee attorney that were not implied versus issue polarization. Looking at the significance value here we can see that there is a 46.4%

that this probability is due to chance. Based upon this, we can say there is no significance. Issue polarization does not have an effect on the amount of questions that are not implied and asked to the appellee attorney.

Chart 2.3: One-way ANOVA between Issue Polarization and Appellee Implied

Questions that were asked to the appellee that were implied

F-Value

Significance

1.033

.434

The next variable is the questions that were asked to the appellee attorney that were implied questions.

Looking at chart 2.3, we can see that we have a significance value of .434, this once again demonstrates that no significance exists between these two variables.

There is a 43.4% probability that this relationship is due to chance. Due to this high probability, we must then conclude that there is no significance between issue polarization and the amount of implied questions that the appellee attorney is being asked.

Chart 2.4: One-way ANOVA between Issue Polarization and Appellant Implied

Questions that were asked to the appellant that were implied

F-Value

Significance

.875

.634

Next, I looked at the questions that were asked to the appellant attorney. The first one-way ANOVA I ran was between issue polarization and the total amount of questions that the appellant attorney was being asked that were implied. Looking at chart 8, we can see that the

significance value is .634. Therefore, there is no significance here either meaning that issue polarization does not affect the amount of implied questions that are being asked of the appellant attorney.

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Chart 2.5: One-way ANOVA between Issue Polarization and Appellant Not Implied

Questions that were asked to the appellant that were NOT implied

F-Value

Significance

1.714

.029

The last variable that I looked at in terms of the questions being asked during the attorneyâ&#x20AC;&#x2122;s oral argumentation was the amount of not implied questions that were being asked of the appellant attorney. This was really interesting because if we look at the significance value then we can see that it is .029, it is lower than the .05 requirement and is therefore significant. There is a

Graph 1.6: Box Chart of Appellant Not Implied

2.9% probability that this relationship is due to chance.

This means that issue polarization is affecting the amount of not implied questions asked of the appellant attorney. This was interesting considering it was the only type of question that issue polarization had an effect upon and I decided to investigate further.

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I created a box chart that illustrates the relationship between issue polarization and the appellant not implied questions. The black lines on this chart which are not connected to the shaded area illustrate the distribution of the questions in each category, whether it be liberal, conservative or neutral. This means that the black line we see in the liberal section indicates that the lowest amount of not implied questions to the appellant attorney were around five questions, while the maximum amount were fifty-three questions, not including the outliers. The outliers are seen on this graph by the stars or circles that are located above the drawn distribution. These outliers might be one of the reasons that there is a significance between issue polarization and the total number of appellant not implied questions. Another thing that is indicated in this chart is the black lines located in the middle of the shaded in box. These lines indicate the averages of each category. If we look at chart 10 then we can see that the averages of each group is rising. The liberal cases have an average of less not implied questions, while the conservative cases have the most.

This trend that shows an increase in questions based on the polarization of the issue is a clear indicator as to why there is a significance between issue polarization and questions that are asked to the appellant attorney that are not implied.

5. Conclusion The results from my data analysis demonstrate that an attorney is likely not to have an effect in the Supreme Court, especially when the case is partisanly divided.

This is the result of a lack of significance between issue polarization and the similarities of the oral argumentation versus the opinions by the Court. Since there is no significance in this respect, we can make the inference that an attorney is not having an effect on the Supreme Court. The other attorney influence that we expected to see was based upon the number of implied versus not implied questions that were asked to the attorney. In terms of these variables we noticed that only one of them was significant. Since only the appellant not

implied questions held any significance, there is a strong likelihood that an attorney is still not having much of an impact on the justices. Due to the lack of significance between the other variables I think it is safe to assume an attorneyâ&#x20AC;&#x2122;s influence seems to be lacking in the Supreme Court with issues that are polarized.

The results did indicate, however, that there is a likelihood that justices are voting on party lines. When looking at how many liberal justices were voting yes or no for a case and how many conservative justices were doing the same, we saw that the issue polarization of the case had an effect on these variables. There was a significance between how the justices were voting and whether or not the case was polarized. From this we can assume that the justices are voting on their party lines.

Furthermore, the results also indicated that there was a relationship between issue polarization and whether or not the decision would be split or unanimous. We saw that the split decisions were more likely to be conservative issues, while the unanimous decisions were more likely to be neutral or non-partisan issues. Through this, we can see another indicator of justices voting on their party lines. These results go to solidify the fact that there is some sort of bias that exists within the Supreme Court and that an attorney is not playing as much of a role as we would expect them to be.

The reason that an attorney may not be having as much of an effect as we would have expected could be due to our political climate. Our political climate shows that our political system and society is becoming more and more polarized. With this we see an increase in polarization in all of our institutions, including the Supreme Court. Due to the polarization occurring in the Supreme Court, we can say that an attorney may appear in the Supreme Court in order to aid the justice in understanding the factual issues of a case in front of them. An attorneyâ&#x20AC;&#x2122;s appearance may also be used as an image to the public, in order to convince the public that they have an impact in Supreme Court decision-making.

There are certain factors that can be adjusted in this thesis. For example, I noticed that there was a lack of words copied from the oral argumentation and the written opinions by the Court. I think that if someone

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wanted to further explore this data then they should look at what part of the oral argumentation was copied and see if any of those similarities are significant chunks of the attorney’s argument. If significant chunks are being copied, then there is a strong likelihood that attorneys could be having more of an impact than we are anticipating. Furthermore, I used a comparison tool to find the similarities between the argumentation and opinions written. If I had more time to work on this project then I would read the oral arguments and opinions and find the similarities myself. This is because the Court opinions might not be using the exact wording from the attorney’s argumentation, rather using a similar idea. If there are in fact more similar ideas being used, then these ideas would be ignored through an online comparison.

Another recommendation would be to create a multimethod study because this can account for variables in a qualitative sense as well. This qualitative data would be helpful because it would require an analysis of separate cases, and through this we would be able to see if there are specific instances where an attorney could be playing a role. As part of the multi-method study, we should also talk to justices to find out what they are really thinking when examining cases. It is difficult to speculate as to what is running through a justice’s mind. The only adequate way to find out exactly what a justice is thinking is to get their perspective on the issue. That factor along with my data set and some qualitative analysis could create a more detailed study.

All in all, this thesis demonstrated that an attorney does lack an effect in Supreme Court decision-making.

Through my study, I found it surprising that there was not more text copied between the Court’s opinions and the attorney’s argumentation. This though, as stated earlier, could be due to the fact that the opinions might be written using different phrases that carry the same idea that the attorney is conveying. I also did not expect to see as many implied questions when reading the oral argumentations. Reading the oral argumentation and all the questions asked really indicated that an attorney may not be as effective as they appear to be. Overall, there were surprising elements in the data set and the results

indicate what we should expect as a result of our divided political system.

6. Works Cited Boucher, Robert L., and Jeffrey A. Segal. “Supreme Court Justices as Strategic Decision-Makers: Aggressive Grants and Defensive Denials on the Vinson Court.” The Journal of Politics 57.3 (1995): 824–837.

Frost, Amanda. Academic Highlight: Does Oral Argument Matter? SCOTUSblog, 24 Mar. 2016, www.scotusblog.com/2016/03/academichighlight-does-oral-argument-matter/.

George, Tracey E., and Lee Epstein. “On the Nature of Supreme Court Decision Making.” American Political Science Review 86.2 (1992): 323–337.

Hoekstra, Valerie. “Competing Constraints: State Court Responses to Supreme Court Decisions and Legislation on Wages and Hours.” Political Research Quarterly 58.2 (2005): 317–328.

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Kristen Khair

Kristen Khair is a fourth year Political Science major with a minor in Philosophy. Her expected graduation date is June 2018. She will be graduating with the Kellogg Honors College and is also graduating with Summa Cum Laude. Her involvement with the Mock Trial Team has led her to pursue a career as a criminal prosecutor. In the fall, Kristen is expected to start school at UC Davis Law School. She would like to thank all of the professors in the Political Science Department for their support and encouragement, she does not think that she could have made it this far without them.

Email: kristenkhair@gmail.com

Journal Editorial Board 2017- 2018 Athenamarie Garcia-Gunn Barrett Tate Caroline Medina Danielle Correa Esteven Sanchez Gregory Li Gustavo Callejas Ingrid Perez Flores Jacinto Nuno Jason Wong

Joshua Ebiner Laura Yeghiazaryan Marilyn Guzman Marvin Morales Ngon â&#x20AC;&#x153;Jonâ&#x20AC;? Nguyen Samara Renteria Shannon Lee Tristen J. Marler William Lambdin

Thank you to everyone who helped peer review the papers submitted to the California State University of Pomona, Undergraduate Journal of Political Science! This journal would not have been possible without the time and effort they spent to meticulously read through the articles and offer insightful comments.

Many thanks to Professor Neil Chaturvedi for all of his help on the journal.

Also, thank you to Professor and Chair Jill Hargis as well as the Political Science Department at California State Polytechnic University, Pomona for their continued support of the journal. *There was no conflict of interest between the people who peer reviewed papers for the journal and the papers that were chosen for publication.

No one was assigned their own paper to read and papers were reviewed by more than one peer reviewer.

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