RJOLAS Fall issue 2014 (with cover)

i

Ramapo Journal of Law and Society Vol. I

Fall 2014

Number 2

TABLE OF CONTENTS SPECIAL ARTICLES The International Refugee Regime: A Failing System ……………………………………………………………………………….1 Nicole Triola, Ramapo College of New Jersey The Effect of Staggered Election Cycles on Cosponsorship of Reversal Legislation in the U.S. Senate ……………………………………………………………………………….21 Thomas Bauerschmidt Sweeney, Allegheny College Arizona’s S.B. 1070 as a National Lightning Rod ……………………………………………………………………………….39 Cynthia Burns, Ramapo College of New Jersey PERSPECTIVES Substituting Socioeconomic Status for Race in College Admissions ……………………………………………………………………………….56 Adam Rosario, Rutgers University-New Brunswick Protection vs. Autonomy: The Role of Reproductive Health in Gender-Specific Legislation ……………………………………………………………………………….65 Amanda Hamilton, Drake University Charter Schools and Socio-Economic Gaps in Education ……………………………………………………………………………….72 Timothy Gonzalez, Rutgers University-New Brunswick

Mission The Ramapo Journal of Law and Society is an interdisciplinary, online journal devoted to the publication of undergraduate scholarship in Law and Society. The Journal’s mission is to provide a platform to undergraduate students from across disciplines to engage with socio-legal issues in the context of the liberal arts. We understand law and society broadly to include discussions of law in society not just as rigid bodies of rules but as dynamic institutions shaped by historical forces and social imperatives. The journal will include submissions from varied fields of the social sciences and humanities, and hopes to build conversations across disciplines on the topical socio-legal issues of our times.

The journal is published by an editorial board of students and faculty representing the Ramapo College undergraduate program in Law and Society, in collaboration with our colleagues at other colleges and universities nationwide.

Executive Editorial Board Editor-in-Chief: Jonathan Mangel, 2015

Faculty Advisory Board

Asst. Prof. Sanghamitra Padhy Asst. Prof. Mihaela Serban Elle Alfaro, 2015 Alexandra Cerbone, 2015

Renee Cramer, Drake University Mark Howenstein, Ramapo College of NJ Kristin Kenneavy, Ramapo College of NJ Francesca LaGuardia, Montclair State University, NJ Chrysanthi Leon, University of Delaware Jinee Lokaneeta, Drew University, NJ

Kristi Intorre, 2015 Molly Hopkins, 2015 James Ticchio, 2016

Aaron Lorenz, Ramapo College of NJ Paul Reck, Ramapo College of NJ Christine Scott-Hayward, California State University at Long Beach, CA Jillian Weiss, Ramapo College of NJ

iii

Acknowledgments The Ramapo Journal of Law and Society would like to thank Dean Samuel Rosenberg for his unwavering support, and to Dominique Johnson, for initiating this project. Thank you to Robert Josic and Steve Schurr for their help with web design and all technical assistance.

The views expressed by the authors are not necessarily those of the Ramapo College of NJ or the Law and Society program at Ramapo. While the Editorial Board has made every effort to ensure the accuracy of information contained in this journal, we cannot accept responsibility for any errors or omissions contained in the articles.

No part of this journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission from the authors in writing. The authors who submitted their work to the Ramapo Journal of Law and Society retain all rights to their work.

The International Refugee Regime: A Failing System

The International Refugee Regime: A Failing System NICOLE TRIOLA* In 1921, the High Commissioner of the League of Nations coined the term refugee and began what would be later known as the international refugee regime (Feller, 2001, p. 584). Today the international refugee regime is the body of law that surrounds international migration based on safety and persecution. The regime outlines the rights, obligations, and responsibilities that sending and receiving states have to asylumseekers, refugees, as well as other states. The regime was formed as a reactionary measure to combat the consequences of the Balkan Wars, World War I, and many conflicts thereafter. The most important legislative piece of the international refugee regime is the 1951 Convention Relating to the Status of Refugees. This convention defines a refugee as someone who leaves their country of origin due to a real fear of persecution based on their race, religion, nationality, membership of a particular social group or political opinion (UN General Assembly, 1951). Refugees are a special category of people that are deserving of protections due to their vulnerable state.

The international refugee regime, and in particular the 1951 Convention Relating to the Status of Refugees, is failing at protecting and providing resources for refugees.

This issue is important because the face of modern warfare has changed as the line between soldiers and civilians is blurred and civilian attacks are becoming a war strategy (Feller, 2001, p. 587). Consequently, there have been disproportionately large numbers of refugees created through all types of violent conflicts. The most recent example of a refugee crisis is Syria, with over nine million refugees (“Syrian Refugees”, 2014).

From the beginning, the international refugee regime has developed in patchwork fashion, with attempts to cover issues and concerns that were not originally thought of when founding conventions and declarations were drafted. As a result, there are significant holes in the system. The two major shortcomings that will be discussed are sexual orientation as a missed group in the 1951 Convention Relating to the Status of Refugees, as well as burden-sharing as it relates to the Dublin regime for asylum seekers within the European Union. Sexual orientation as a missed group revolves around the vague wording of the 1951 Convention and the excessive discretion that exists within the asylum application process. Burden-sharing revolves around the overwhelming number of asylum-seekers in certain Member States of the European Union, particularly Greece.

In order to analyze sexual orientation as a missed group and burden-sharing, this paper will utilize personal stories, which allow the reader to get a sense of what is actually happening around the world as a consequence of these difficulties within the regime. The laws and policies surrounding each of the concepts will also be investigated in detail in order to understand the origin of the current problems. The paper will also analyze two landmark cases in order to assess what the legal community has to say about these shortcomings. The real life examples, legislative investigation, and court analysis will give a well-rounded perspective of how the failures to include sexual

* Nicole is a 2014 graduate of the Law and Society program at Ramapo College of NJ. She is currently

pursuing her Juris Doctor degree at Case Western Reserve School of Law.

1

Ramapo Journal of Law and Society

orientation as a group in the 1951 Convention and to rectify the issue of burden-sharing are leading to massive human rights violations for refugees around the world.

The history of the international refugee regime The current international refugee regime is riddled with difficulties and shortcomings that negatively affect those the regime is meant to protect. In order to better understand the complexities that exist within the regime it is crucial to understand its history. The regime was produced through a series of reactive measures that have built over time to result in what is known as the international refugee regime.

A certain pattern has created the international refugee regime: a conflict arises and an institution is created in order to deal with the conflict and its consequences. None of the institutions so created were meant to sustain an entire international regime.

Conflicts between different state and territorial entities have existed since the beginning of time. Oftentimes such conflicts result in destructive conditions that force people to leave their homes. Today these people are referred to as refugees. While the problem of refugees has always existed, there has not always been a shared international sense of responsibility to provide protection and services for displaced peoples (Feller, 2001, p. 584). It wasn’t until the twentieth century that the refugee dilemma was truly recognized as needing attention and a solution. In 1921, the League of Nations became the first international body to define the term refugee and begin what would be later known as the international refugee regime (Feller, 2001, p. 584).

In the wake of the Russian Revolution and World War I, over one million people left Russian territories for safer destinations. The primary form of aid given to those that left the Russian Empire was charitable donations from numerous public and private organizations (Jaeger, 2001, p. 727-728). The relief effort lacked a central body to coordinate and communicate with counterparts and to effectively raise funds to assist this group. In response to this issue, on February 16th, 1921, the Joint Committee of the International Committee of the Red Cross and the League of Red Cross Societies held a conference that established a High Commissioner to “define the status of refugees, to secure their repatriation or employment outside Russia, and to coordinate measures for their assistance” (Jaeger, 2001, p. 728). Dr. Fridtjof Nansen, the first appointed High Commissioner, defined refugees by their specific country of origin and also created “identity certificates” for the refugees (Feller, 2001, p. 584).

Under Dr. Nansen several institutions were assembled: the Intergovernmental Committee on Refugees, Office of the High Commissioner of the League of Nations for Refugees, and the Nansen International Office for Refugees, in order to effectively assess and combat the refugee problem at the time (Jaeger, 2001, p. 729). The institutions evolved to include representatives from several countries around Europe, and with their input led to the drafting of the 1933 Convention Relating to the International Status of Refugees. The Convention Relating to the International Status of Refugees “… dealt with administrative measures, refoulement, legal questions, labor conditions, industrial accidents, welfare and relief, education, fiscal regime and exemption from reciprocity, and provided for the “creation of committees for refugees” (Jaeger, 2001, p. 730). It was the first reactive measure taken by the international community and the first supranational convention of its kind created with the goal of assisting those displaced from war and conflict.

The International Refugee Regime: A Failing System

The next building block of the international refugee regime was the establishment of the International Refugee Organization (IRO) by the UN General Assembly on December 15th, 1946 (Jaeger, 2001, p. 732). The aftermath of World War II was devastating and the primary concern of the IRO was to resettle the refugees from around the world, as opposed to focusing on rehabilitation or reparation (Gallagher, 1989, p. 579). As the number of refugees continued to grow, it became clear the institution would not complete the resettlement by 1950, which was the year the organization was set to dissolve. In conjunction with various other institutions, the IRO resettled over one million people between 1947 and 1951 (Jaeger, 2001, p. 732). In light of the continued need for the services provided by the IRO, the Commission on Human Rights and the Economic and Social Council requested the Secretary-General to undertake a study to examine the refugee situation and make recommendations for the UN to consider moving forward (Jaeger, 2001, p. 733).

Creation of the United Nations High Commissioner for Refugees and 1951 Convention The study that resulted, A Study of Statelessness, examined the situation of refugees in several important aspects including expulsion, social security, international travel, education, relief, and many others. In order to present a recommendation on the most effective way to handle stateless persons, the Study concluded that: “The conferment of a status is not sufficient in itself to regularize the standing of stateless persons and to bring them into the orbit of law; they must also be linked to an independent organ which would to some extent make up for the absence of national protection and render them certain services which the authorities of a country of origin render to their nationals resident abroad.” (Jaeger, 2001, p. 734) The independent institution the Study referred to was reminiscent of the League of Nations’ High Commission. A final suggestion made in the Study was that the Economic and Social Council “recognize the necessity of providing at an appropriate time permanent international machinery for ensuring the protection of stateless persons” as opposed to institutions that had an expiration date (Jaeger, 2001, p. 735).

After taking various proposals into consideration, the UN General Assembly created the UN High Commissioner for Refugees (UNHCR) and the 1951 Convention Relating to the Status of Refugees.

The primary concern of the UNHCR and 1951 Convention were the remaining million people that were still stateless after fleeing the Nazi regime. Because this institution was created in response to the devastation of World War II, it can also be classified as a reactive measure (Feller, 2001, p. 585). The UNHCR was granted a meager $300,000 budget to assist those that were still in flight, with a three year “temporary authority” to do so (Gallagher, 1989, p. 580). Along with the undersized budget, the Convention was also limited in its application, as it applied only to those persons “affected by the events occurring in Europe (or elsewhere) before 1 January 1951” (Gallagher, 1989, p. 580). Therefore, the protections provided by the Convention were only granted to those that had already been affected, and not to future stateless persons. Still, the Convention “was the first [and indeed remains] the only binding refugee protection instrument of a universal character” (Feller, 2001, p. 585).

The Convention spelled out various rights and protections afforded to refugees, one of the most important being the binding definition of what qualifies a person as a refugee:

3

Ramapo Journal of Law and Society

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” (UN General Assembly, 1951) The definition was significant because it set the standard for identifying a person as a refugee and granted refugees access to the rights and protections in the Convention (assuming they became stateless before January 1st, 1951). Another essential component of the Convention is the article on non-refoulement. Non-refoulement is the principle against forcibly expelling a refugee back to a territory where “his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (UN General Assembly, 1951). The Convention is made up of forty-six articles that answer questions about refugee rights concerning freedom of movement, identity papers/travel documents, social security, non-discrimination, access to courts, and others.

The Convention strongly reinforced the idea of resettling refugees by promoting the options of assimilation, naturalization of the refugees in the countries that granted them asylum, as well as voluntary repatriation (Gallagher, 1989, p. 581). One could argue that the parameters of the Convention, including the definition of a refugee, date requirement, and policies toward naturalization or repatriation consequently resulted in a quite limited Convention. The reason for the limitations imposed by the 1951 Convention was to keep the number of refugees at a minimum (Gallagher, 1989, p. 581).

The UNHCR was already operating on a measly budget that was expected to cover legal protections and the “promotion of durable solutions” (Gallagher, 1989, p. 581). If the UNHCR required supplementary funds beyond the base $300,000 in order to perform their duties, they were obliged to draft “special agreements with governments to “improve the situation of refugees” (Gallagher, 1989, p. 581). However, there was a general understanding that seeking contributions from local governments should not become common practice.

The end of “temporary authority” and introduction of the 1967 Protocol The next period of time concerning the UNHCR was one of dormancy. While the Cold War produced hundreds of thousands of stateless people in need, the UNHCR remained inactive. The UNHCR was dormant due to the restrictive nature of the Convention and lack of money. The “Cold War refugee problem” was handled by various agencies that did not involve the UN (Gallagher, 1989, p. 582). The preventive funds and definitions immediately became roadblocks to gaining Convention signatories and supporters. In fact, “between 1951 and 1956, the survival of UNHCR was very much in doubt” (Gallagher, 1989, p. 582). However, the agency was granted three million dollars from the Ford Foundation that kept it from completely dissolving.

A turning point in the life of the UNHCR and 1951 Convention Relating to the Status of Refugees occurred in 1956, when 200,000 Hungarians fled their country and migrated to Austria and Yugoslavia (Gallagher, 1989, p. 582). This was also the year that the UNHCR’s three year “temporary authority” was due to expire. A 1956 UN General

The International Refugee Regime: A Failing System

Assembly Resolution granted the UNHCR the authority to lend support and assistance to the fleeing Hungarians (Gallagher, 1989, p. 582). The UNHCR’s activities post-1956 illustrated the “usefulness of having a nonpolitical humanitarian international agency on the scene in situations where significant political interests and sensitivities are at stake” (Gallagher, 1989, p. 582). The success achieved through aiding the Hungarian refugees secured the UNHCR’s survival.

Again in 1958 and 1959 the UNHCR operated under approved assistance in order to give humanitarian aid to Algerian refugees in Morocco and Tunisia, as well as to Chinese refugees in Hong Kong (Gallagher, 1989, p. 582). It was becoming clear that the UNHCR and the 1951 Convention were useful outside their original narrow scope. The early 1960s were not plagued with any massive movements of people, but it became a time for the General Assembly to seriously examine the limitations of the Convention. A Protocol was drafted and approved by the UNHCR’s Executive Committee, and also the General Assembly, to address some of these limitations. The required number of state signatories was promptly reached and in 1967 a Protocol was added to the 1951 Convention (Gallagher, 1989, p. 583). The Protocol authoritatively lifted the time and geographical limitations that existed, and allowed the UNHCR to provide support without cumbersome special regulations from the General Assembly (Gallagher, 1989, p. 583).

The 1960s and 1970s were marked by the process of decolonization in Africa, which violently led to a substantial amount of people fleeing their country of origin (Gallagher, 1989, p. 583). A particular problem that plagued the movements throughout Africa was that people were leaving their own poor countries and traveling into other similarly deprived territories that were already struggling to support their inhabitants.

This presented a unique predicament for the UNHCR. In order to cope with supporting those in extremely poor countries that lacked basic resources, the General Assembly again took to drafting special resolutions for the UNHCR to raise money. However, the humanitarian effort in Africa revolved around direct assistance of refugees versus the more legal nature of assistance that was provided throughout Europe (Gallagher, 1989, p. 583). The UN recognized the special circumstances of Africa’s decolonization and together with the Organization of African Unity drafted the 1969 Convention on the Specific Aspects of Refugee Problems in Africa.

During the late 1970s, the UNHCR dealt with its first burden-sharing situation.

The world was witnessing Vietnamese people fleeing their homes in fragile boats, only to be rejected and sent away once they reached the shores of nearby countries (Feller, 2001, p. 586). The solution to this difficulty would only come to fruition if multiple countries could come together with the UNHCR and agree on a plan of action.

Consequently, in 1979 the International Conference on Refugees and Displaced Persons in South-East Asia was held in Geneva to discuss the concept of burden-sharing and possible solutions (Feller, 2001, p. 586). The result was the Comprehensive Plan of Action (CPA) for Indo-Chinese refugees that entailed a three-way agreement, which included countries offering asylum, the countries of origin, and donor countries (Feller, 2001, p. 586). The UNHCR’s facilitation of this multi-party agreement in response to the crisis in Vietnam once again expanded the scope of the international refugee regime.

Shift to modern day

5

Ramapo Journal of Law and Society

The 1980s marked the shift of the international refugee regime into its modern day form. The world’s problems and mounting number of refugees began to escalate more quickly than the UNHCR could match or be prepared for. The sheer number of stateless people grew exponentially and there were soon large pockets of refugees located on every continent in the world (Gallagher, 1989, p. 584). The most notable population movement was from Eastern to Western Europe. Many citizens left places like Turkey for economic reasons and became guest workers in Western European countries. When their visa expired, it became common practice for people to plead for asylum in order to stay in Western Europe. Consequently, “the close relationship between their [migrants] economic and political motivations brought into question the refugee status of these migrants” (Gallagher, 1989, p. 593). The UN General Assembly had more asylum-seekers than they could give support to and growing difficulties regarding defining each person’s status.

In Europe, the changes that resulted from the confusion surrounding each person’s status and general overflow of refugees led to the creation of the Dublin system, first established with the adoption of the Dublin Convention in 1990. The Dublin Regulation became part of the international refugee regime in 2003 by expanding the Dublin Convention and making the process for refugees applying for asylum in receiving countries more effective (Gallagher, 1989, p. 593). The Dublin Regulation was further updated in 2013 (Dublin III). A common problem addressed by the Dublin regime was the following: stateless people arrived in receiving countries, applied for asylum, and then moved on to another country and applied for asylum a second time. This created a backlog and slowed down the process of reviewing applications for asylum. In the event that a person does apply for asylum in country A and moves on to country B before having their application reviewed and decided upon in country A, country B can send that stateless person back to country A (European Parliament, 2003).

The number of refugees in need of assistance in the new millennium skyrocketed to an unprecedented 25 million people (Feller, 2001, p. 587). Due to the exponential number of refugees, the focus of the international refugee regime and UNHCR shifted from voluntary repatriation, resettlement, and assimilation to merely attempting to control the influx of people. Soon countries that held refugee camps were experiencing negative consequences: “even in traditionally hospitable asylum countries, there was hostility, violence, physical attack, and rape of refugees” (Feller, 2001, p. 587-588).

These unfortunate circumstances led countries to be less likely to be willing to use their time and resources to host refugee camps, especially if the conflicts or circumstances that caused those people to flee weren’t coming to peaceful resolutions in the near future.

In conjunction with the rising number of conflicts around the world, the face of modern conflict was also changing. The happenstance of war, whether internal or external, was yielding more refugees than in the past. One way to explain this change is that human rights violations that were leading to populations fleeing the country were actually becoming a conscious objective of warfare. Therefore, even a smaller conflict yielded a disproportionately high amount of people in need of support and resources (Feller, 2001, p. 587). If we take this change of warfare and maximize it on a global scale, we will end up with a substantial number of refugees and stateless people flooding other countries, which is exactly what happened.

The International Refugee Regime: A Failing System

In summary, the 1951 Convention and 1967 Protocol were not meant to function as the heart of the entire international refugee regime, but rather were forged through a series of responses to conflicts. To this day, there exists a deep disconnect between what the world’s refugees need and what the regime has to offer. The refugee problem has spiraled out of control and our current international refugee regime is not equipped to deal with the situation. In the following chapters, two of the shortcomings of the international refugee regime will be examined in greater detail: sexual orientation as a missed group in the 1951 Convention, and the problem of burden-sharing as a result of the Dublin Regulation.

Sexual orientation does not warrant refugee protection The international refugee regime is plagued with numerous problems that prevent it from working efficiently and effectively. The following chapters focus on two such difficulties. The first problem analyzed is sexual orientation as a missed group of the 1951 Convention Relating to the Status of Refugees. This part of the paper will use a personal story to introduce the complexity of the issue, followed by an examination of relevant policies and implementation of policies. This analysis will show that sexual orientation is not protected as a type of refugee status and is leading to profound human rights violations around the world.

While there are many problems within the international refugee regime, sexual orientation as a missed group is important to investigate in more detail for several reasons. First, sexual orientation as a missed group in the 1951 Convention is a relatively new issue and was thought of in the original drafting of the Convention. As the standards and norms of the international community evolve, challenges arise to force change upon the law to match those evolving standards, and sexual orientation is one such example. Second, sexual orientation is a special issue because of the views on lesbian, gay, bisexual, and transgender tolerance around the world. The recent Olympic Games held in Russia and the highly controversial choice to keep the LGBT athletes out, India’s law against homosexual relationships, and Australia’s failure to pass a same-sex marriage law are just some examples of the homophobia that is still rampant across the world (Chalabi, 2013). This extensive homophobic attitude is also made clear through the practices within the international refugee regime.

The story of Tufan In his book Embracing the Infidel: Stories of Muslim Migrants on the Journey West, author and scholar Behzad Yaghmaian documents personal stories of migrants in Europe. Through interviews and group conversations, Yaghmaian illustrates the very human aspect of international migration (Yaghmaian, 2005). It is important to review literature that contains personal stories because this emotional human factor can get easily lost when constantly discussing institutions and conventions; after all, the international refugee regime is about protecting people. Throughout the book, the reader is able to understand the different trials and tribulations often facing international migrants. The book highlights various problems within the international migration system and international refugee regime that often lead to despicable human rights violations (Yaghmaian, 2005). Also, individual narratives tell us how the international refugee regime is used in practice versus how it is written in the law.

7

Ramapo Journal of Law and Society

Yaghmaian documented his meetings with Tufan, a male asylum-seeker from Iran, while they were both in Paris. Tufan was in his mid-twenties and accompanied by a group of other Iranian men that spent the past couple of years attempting to migrate from Greece to France. In the beginning of their conversations Tufan would tell Yaghmaian that he left Iran in order to pursue his dream of becoming a writer, as Iran did not have enough freedom of the press for him to write there safely. However, during one of their meetings Tufan turned to Yaghmaian, “Do you want to tell the real stories of the refugees? … Then you also need to talk about the two forgotten groups. You should talk about gays and lesbians. Many have written about political refugees, but no one is interested in the stories of the gay people” (Yaghmaian, 2005, p. 271).

Tufan then began to describe the lives of several gay men that he had known while still living in Iran. Tufan detailed the behavior of a government entity named the “morality police” responsible for the imprisonment, torture, sexual assault, and death of several openly gay men in Tehran, Iran (Yaghamaian, 2005, p. 272-275). As Tufan continued to retell stories of passed friends, he began to introduce his own life and struggles. Tufan had applied for asylum in France under the political category of the 1951 Convention but was denied due to lack of evidence. Shortly after the denial it was disclosed to Yaghamaian that the stories Tufan knew about the gay community in Iran hit very close to home. The truth about Tufan was that he was a gay man who had been forced into marriage, and that his wife was still waiting for him to return to Iran and was unaware of his homosexuality. Tufan knew that due to the circumstances of his life, his chances of being accepted for asylum based on his sexuality would be entirely up to his interviewer. This burden was insurmountable for Tufan, who sullenly explained, “Sometimes I wish to die. I wish to go to sleep and never wake up.” (Yaghamaian, 2005, p. 282).

Sexual orientation as a missed group Tufan’s trials and tribulations allow for an unedited look into the system in practice. We can take the life of Tufan and explore sexual orientation as a missed group in the 1951 Convention in order to try to understand how this specific limitation led to the human rights abuses Tufan and his friends suffered. The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol define refugees based on well-founded fear in relation to five categories: race, religion, nationality, or membership in a particular social or political group (UN General Assembly, 1951). It was only in the early 1990s that a public debate began on what protections, if any, the LGBT community was afforded through the 1951 Convention (Wessels, 2011, p. 9). This problem is important because it is contemporary and affects many people like Tufan. However, the lack of data collection makes it very difficult to provide statistics (Jansen & Spijkerboer, 2011, p. 15). Over the past twenty-some years, two major points have emerged: the problems resulting from the lack of clarity of important terms in the 1951 Convention, which led to the overwhelming amount of discretion possessed by decision-makers when reviewing an applicant’s file.

The graph below was published by the International Lesbian, Gay, Bisexual, Trans and Intersex Association in 2012 and illustrates the state of LGBT rights around the world. The map uses pink, purple, and yellow to exemplify the number of countries that have laws discriminating against homosexuality. The range of punishments each country holds for homosexuality or homosexual acts ranges from a term of

The International Refugee Regime: A Failing System

imprisonment all the way to a death sentence (Lesbian and Gay Rights in the World, 2012). An important note to make regarding the map is that the neutral colored countries are labeled as having “no specific legislation,” but this does not mean homosexuality is accepted. There are numerous countries that may not have explicit laws pertaining to the criminalization of homosexuality, but persecution could be a socially accepted practice, which would still give cause to members of the LBGT community to be in fear and flee.

ILGA, 2012

Defining “membership to a particular social group” The first important piece of identifying sexual orientation as a missed group of the 1951 Convention revolves around how the Convention’s definitions have been interpreted and applied. The 1951 Convention states that those who are “persecuted” and have a “well-founded fear” due to their “membership to a particular social group” are considered refugees and deserve the protections and rights outlined throughout the Convention (UN General Assembly, 1951). However, what exactly does “membership to a particular social group” mean? Unfortunately, this mention of membership in the Convention is the least clear of the five listed, so it has been left up to interpretation. In 2008, the UNHCR published the Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, providing some clarity on the matter (Wessels, 2011, p. 5). The Guidance Note defines “membership of a particular social group” as:

9

Ramapo Journal of Law and Society

“A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience, or the exercise of one’s human rights.”

(UNHCR, 2008) This definition was intended to fuse together two dominant views: a “characteristics” approach and a “social perception” approach on membership through case law (Wessels, 2001, p. 11). While this proposed definition by the UNHCR offers more substance than the category listed in the 1951 Convention, it remains vague. The definition does not present an explicit consensus on how to define “membership to a particular social group” and clearly makes no admission to the LGBT community in particular. A major criticism that suggests this definition is lacking is the fact that all members of the LGBT community do not share one common characteristic. Even if “same-sex attraction” could be used to describe people who identify as lesbian or gay, it would still leave out transgender, bisexual, and intersex peoples (Wessels, 2011, p. 13).

Unclear terms and the problem of discretion Furthermore, defining “persecution” and “well-founded fear,” which are essential elements to qualifying a person as a refugee, are equally puzzling. The 1951 Convention does not offer clarification and there is no universally accepted designation of the terms (Wessels, 2011, p. 15). Because of this lack of clarity or specificity, when an asylumseeker lodges an application for refugee status based on LGBT status, it is entirely up to the decision-maker reviewing their file to accept their case. This results in the decisionmaker possessing an unfair amount of discretion over the fate of the applicant and leaves the opportunity for personal biases to interfere with and influence the ultimate outcome.

The UNHCR’s Guidance Note refers to persecution as involving “serious human rights violations, including a threat to life or freedom, as well as other kinds of serious harm, as assessed in light of the opinions, feelings, and psychological make-up of the applicant” (UNHCR, 2008). The difficulties that result from this definition are assessing what kind of decision-maker could be qualified to evaluate those deeply personal attributes of a person, as well as how to judge whether someone is in jeopardy of persecution. In many countries that legally or socially condemn homosexuality, secrecy is a necessary part of life for someone belonging to the LGBT community. How can the UNHCR guarantee that every decision-maker will be qualified to psychologically assess an applicant? Many applicants have spent their entire life lying to those around them.

Secondly, in order to evaluate whether an applicant is in jeopardy, decisionmakers are charged with assessing if the fear is “well-founded.” The concept of “wellfounded” can be expanded to include a “reasonable degree of likelihood” or “real risk” that the applicant will face persecution if they return to their country of origin (Wessels, 2011, p. 15). However, how are decision-makers supposed to evaluate the risk of persecution? If a country has explicit laws discriminating against homosexuality, the risk of persecution can easily be judged as real and imminent. However, oftentimes a country will not have specific legislation against homosexuality, but more general laws against acts “undermining public morality” that are functionally equivalent (Wessels, 2011, p. 17). These discriminatory laws are not always easy to identify and this creates an undue burden on the applicants to prove their circumstances.

The International Refugee Regime: A Failing System

It is therefore crucial to the rights of LGBT individuals that vague definitions are clarified and the abundance of discretion afforded to decision-makers is remedied: “Such clear words reduce the discretion of decision-makers in sexual orientation cases to use the interpretation of the particular social group to exclude gay refugees from protection, and provide lower-level decision-makers with legal guidance on the matter” (Wessels, 2011, p. 14). Therefore, changes need to be made to ensure the LGBT community has access to refugee status. One possible way for these changes to come about would be through the international court system.

Sexual orientation, discretion, and the courts Sexual orientation as a missed group has presented various problems for the international refugee regime. One of the biggest problems discussed has been discretion.

When an asylum-seeker makes an application for refugee status their case is heard and ruled on by a decision-maker. The decision-maker is capable of using unfair amounts of discretion when judging if an applicant should be granted refugee status (Wessels, 2011, p. 15). One way to gather information on the negative consequences of too much discretion is through understanding personal stories. The story of Tufan illustrated the fear that applicants experience at the thought of having the decision left up to their interviewer, especially since their sexual orientation is such a controversial aspect of their lives (Yaghamaian, 2005, p. 282).

Court cases also illustrate the problem of discretion in cases involving sexual orientation, specifically through the “reasonable tolerability” test that requires LGBT applicants show prudence in their private lives, and through the unfair amount of discretion the interviewer has when reviewing an application. By looking at various European court decisions, a clear norm emerges. Expecting an asylum-seeker to hide their sexual orientation in their home country to avoid persecution is routine and regularly grounds for denying an application for asylum (Jansen & Spijkerboer, 2011, p.

34). The landmark decision made by the United Kingdom Supreme Court in HJ (Iran) & HT (Cameroon) v. Secretary of State for the Home Department (2010) UKSC 31 illustrates the fundamental problem of discretion in the refugee system.

HJ (Iran) & HT (Cameroon) v. Secretary of State for the Home Department (2010) UHSC 31 combines two separate asylum claims from 2001 and 2007. In 2001 an Iranian man, HJ, fled his home country for the United Kingdom and in 2007 a man from Cameroon, HT, also applied for asylum in the UK. Both of these men were openly gay and applied for asylum based on their claims that they had “… a well-founded fear that they would be persecuted if they were to be returned to their home countries” based on their homosexuality (HJ & HT v. SSHD, 2010, p.3). In both Iran and Cameroon practicing homosexuality is a criminal offense that could be punished by imprisonment, or in the case of Iran, execution. The applicant from Cameroon, HJ, had also cited an assault he suffered due to this homosexuality in his application for asylum (European Database of Asylum Law, HJ & HT V. SSHD). After review, both of the applications for asylum were denied.

Following the denial, HT and HJ appealed the decision and the Court of Appeals subsequently rejected their appeals. During this process, the Court learned that if HT and HJ were returned to their countries of origin, both would hide their sexual orientation (European Database of Asylum Law, HJ & HT V. SSHD). The Court used the fact that the men would hide their sexuality as a basis for denying their applications for

11

Ramapo Journal of Law and Society

asylum. In the case of applicant HT the Court proclaimed that if he hid his sexuality he would not come to the attention of the authorities, and would thus be safe from persecution. In the case of applicant HJ the Court cited that he could relocate to another part of Cameroon where no one would know about his homosexuality and therefore he would be unlikely to suffer another attack (European Database of Asylum Law, HJ & HT V. SSHD). The Court cited the “reasonable tolerability” test to support the decision.

A common benchmark for an LGBT person applying for asylum is the secrecy they operate under in their home country. An applicant may hide their sexual orientation due to the reception, rejection, and even persecution they would face from family, friends, co-workers, and the law. “LGBT people who leave their country in order to seek refuge and apply for international protection elsewhere, are often rejected with the reasoning that they have nothing to fear in their country of origin as long as they remain discreet” (Jansen & Spijkerboer, 2011, p. 33). This requirement of being discreet is what has become known as the “reasonable tolerability” test. While reviewing an application a decision-maker would ask themselves, would it be reasonably tolerable for this applicant to hide their sexuality and live in their country of origin discreetly? By living quietly and practicing prudence when it comes to their sexuality the applicant could avoid persecution and thus avoid having to relocate to another country.

The decision in the United Kingdom case concerning applicants HT and HJ is not an isolated one. Courts in Belgium, Norway, Switzerland, Finland, and Germany have all cited the “reasonable tolerability” test or something comparable to it in order to deny applicants refugee status (Jansen & Spijkerboer, 2011, p. 34). A judgment in Belgium stated that “In Iranian society there is a great difference between public space and private sphere. In practice, homosexuality among men is widespread and accepted…as long as the relationship is kept private ... The general “de facto-tolerance” means that, as long as homosexuals live their sexuality in private, it is not very likely that the Iranian authorities will show interest in the person involved … as long as they play it by the rules, homosexual men can interact … without attracting attention” (Jansen & Spijkerboer ,2011, p. 34).

Through case law the “reasonable tolerability” test has become normal practice in reviewing asylum applications connected to homosexuality. This method combines the aforementioned two forms of extreme discretion: discretion on the part of the applicant to hide their sexual orientation and discretion on the part of the interviewer when deciding if the applicant could tolerate living with their sexual orientation in secrecy.

After the appeal in HJ (Iran) & HT (Cameroon) v. Secretary of State for the Home Department (2010) UKSC 31 was denied, the asylum-seekers took the case to the Supreme Court in the United Kingdom. The Supreme Court decided that the “reasonable tolerability” test and those like it were not acceptable standards for judging asylum applications because they violated basic human rights. The Supreme Court ruled that “to compel a homosexual person to pretend that their sexuality does not exist, or that the behavior by which it manifests itself can be suppressed, is to deny the fundamental right to be who he or she is” (HJ & HT v. SSHD, 2010). Furthermore, the Court stated that “persecution does not cease to be persecution if the person persecuted can eliminate the harm by avoiding action” (HJ & HT v. SSHD, 2010, p.3). To deny the applicants refugee status and send them back to their home countries would be in

The International Refugee Regime: A Failing System

violation of the article on non-refoulement found in the 1951 Convention (UN General Assembly, 1951).

Through the ruling in HJ (Iran) & HT (Cameroon) v. Secretary of State for the Home Department (2010) UKSC 31 the Court has made it clear that the amount of discretion an interviewer has during the asylum process is a problem that has led to the overstepping of boundaries and thus violations of human rights of the applicants. An unknown number of asylum-seekers have already been turned away due to the “reasonable tolerability” test or something analogous to it. While important, this one Supreme Court decision does not change the norm around the world. The widespread homophobic beliefs held around the world are a major barrier to change. The decision is a step in the right direction but until fundamental changes occur in the international refugee regime that clearly indicate that sexual orientation is a possible gateway to asylum, and the amount of discretion held by an interviewer is greatly reduced, human rights violations will continue to occur to many people deserving of protection.

The creation of an undue and overwhelming burden The second major shortcoming of the international refugee regime discussed is burden-sharing. Burden-sharing pertains to the disadvantages certain Member States of the European Union have when it comes to handling asylum cases. Burden-sharing, like sexual orientation as a missed group, is a particularly important issue to study. The issue of burden-sharing raises critical questions about the intent behind the Dublin system. Are the human rights violations we are seeing as a result of failed burdensharing the unintended consequences of the Dublin legislation or did legislative intent exist to burden certain Member States?

The story of Purya The most forceful way to analyze how the international refugee regime has been affected by the downfalls of the Dublin system is through personal stories and experiences. Earlier the story of Tufan showcased how sexual orientation as a missed group is a fundamental limitation of the 1951 Convention. The story of Purya will demonstrate the negative effects that the Dublin Regulation has on the international refugee regime. Greece is known as an internal gatekeeper to the European Union (Yaghmaian, 2005, p. 220). Therefore, Greece is where an overwhelming amount of asylum-seekers end up just because of its location on the border of the European Union.

The Dublin Regulation imposes an undue burden on Greece in the international refugee regime. Greece has become responsible for an absurd number of asylum-seekers, and has been unable to handle them.

Purya was originally a street vendor from Iran before he became a refugee in search of safety in the European Union. Oftentimes refugees choose to use a human smuggler to get them into the European Union. Purya and a small group of asylumseekers he traveled with employed a human smuggler to get them across the border of Bulgaria into Greece, where they would walk to Athens and apply for asylum (Yaghamaian, 2005, p. 180). However, as so often happens, their journey did not go as planned. After walking into Greece the group was picked up by police: “Purya had thought that the police were taking him to Athens, where he would register for asylum … to his surprise, he found out that the car was going in the opposite direction. The police drove the migrants back to where they had entered the country” (Yaghamaian, 2005, p.

13

Ramapo Journal of Law and Society

181-182). Purya and the group he traveled with were expelled from the European Union without being given the opportunity to apply for asylum.

This expulsion from Greece violated Articles 16, 26, 31, and 32 of the 1951 Convention. These articles cite the states’ responsibility to provide access to courts, freedom of movement, freedom from penalties for being in the country illegally, and from expulsion (UN General Assembly, 1951). Greece, as a signatory to the Convention and as a Member State of the European Union, has an obligation to fulfill the responsibilities cited in the 1951 Convention. After arriving back in Bulgaria the group was immediately taken to a detention center and kept in disgusting conditions for two weeks. This small glimpse into the story of Purya and his journey to apply for asylum shows the unacceptable conditions befalling many refugees. His journey should not be an example of how the international refugee regime functions. The state of the regime is in dire need of reworking and until that time refugees will continue to suffer the consequences of a system plagued by limitations and infectiveness.

Issues raised by the Dublin system The story of Purya demonstrates the limitations of the Dublin Regulation. In an effort to make the international refugee regime more effective, the European Union began a series of harmonization policies in the 1990s. The Dublin Convention was introduced into international law in 1990 with the goal of making the asylum process more efficient. In accordance with the Dublin Convention an asylum-seeker could only have their application reviewed in the first Member State of the European Union that they entered (Bacic, 2012, p. 46). Next, the Amsterdam Treaty of 1999 outlined tenets that every Member State had to put into effect within five years of the treaty coming into law (Bacic, 2012, p. 46-47). The regulations were to ensure each Member State was in compliance with the minimum standards of asylum as set forth by the 1951 Convention Relating to the Status of Refugees and 1967 Protocol.

Shortly after the Amsterdam Treaty, the Common European Asylum Policy (CEAP) was prepared with the goal of creating a universal asylum procedure between all European Union Member States with consistent rules (Bacic, 2012, p. 48). In 2003, the Dublin II Regulation was passed to expand the Dublin Convention (European Parliament, 2003). The Dublin Regulation further “established the criteria for determining which Member State is responsible for examining a lodged asylum application” (Bacic, 2012, p. 58). The most recent update to the Dublin Regulation, aiming to correct some of the problems raised by Dublin II, came into force in July 2013.

In accordance with the Dublin Regulation, a refugee must make an application for asylum in the first European Union Member State that they enter. “If an asylumseeker goes to another Member State and also lodges an application for asylum there, he shall be taken back to the Member State responsible. Asylum-seekers … do not have the right to move and reside freely … other than in the territory of the state responsible for their protection” (Bacic, 2012, p. 59). The original logic behind this regulation was to avoid a backlog created by multiple applications (Bacic, 2012, p. 58). However, this regulation has hindered the effectiveness of the application process for asylum, as the geographic location of a Member State is the sole determinant of the number of entries they will receive. Based on location alone, all of the countries located in the eastern and southern parts of the European Union receive the highest amounts of incoming refugees

The International Refugee Regime: A Failing System

and thus become responsible for filing and reviewing all of their applications (Bacic, 2012, p. 60). The financial liability has become overwhelming and the resources necessary to handle large quantities of asylum-seekers are non-existent. The logical answer to this over-burdening of a Member State would be to transfer applicants to surrounding territories, but the Dublin Regulation prevents that process from happening. Furthermore, if an asylum-seeker moves from their point of entry state for any number of reasons and is caught, s/he will be shipped back, and any existing connections to the second Member State are disregarded (Bacic, 2012, p. 61).

The overwhelming burdens that are placed on states that reside on the periphery of the European Union are best illustrated through numbers: “In some Member States, more than 50% of asylum applications result in success, while in others the percentage is even lower than 1%” (Bacic, 2012, p. 60). Statistics show that Greece has over a 99% rejection rate, which is higher than any other Member State (Greek Council for Refugees, 2013). The Dublin Regulation also introduced a “sovereignty clause,” which allows a Member State to disregard their responsibility to transfer an applicant back to their point of entry state if they are aware the first state is unable to cope with the applicant’s file (Bacic, 2012, p. 58). If the Dublin Regulation were successful in making the asylum process more straightforward, there would be no need for a sovereigntyclause that contradicts the directive it is built into.

The realities of the Dublin system are not without consequence: “The Dublin Regulation, in combination with the other legislative acts of the Union, brings into question the compliance of the European asylum system with international human rights guarantees” (Bacic, 2012, p. 65). A fundamental problem with the Dublin Regulation is that it was drafted on top of the assumption that the harmonization policies of the 1990s were successful. However, statistics show that in “2012 just under one third (31%) of EU first instance asylum decisions resulted in positive outcomes … the share was considerably lower (19%) for final decisions [based on appeal or review]” (Eurostat, 2013). Also, in a country like Greece that functions as an internal gate-keeper for the European Union, acceptance rates are as low as 0.1% (M.S.S. v. Belgium and Greece, 2011). These statistics demonstrate that the overburdened states have a much smaller acceptance rate, and the playing field is simply not equal. Not only has operating under the false assumption of harmonization led to overburdening some Member States, but it has also led to the disintegration of human rights guarantees.

The first type of human rights violation has been the increased use of detention centers. These detention centers began as avenues of last resort but have quickly become the first stop for applicants awaiting transfer. These centers are oftentimes not up to international law standards and have earned the reputation for treating asylum-seekers like unlawful prisoners instead of refugees seeking assistance (Bacic, 2012, p. 65). For example, “The Committee for the Prevention of Torture of the Council of Europe [CPT] noted in the report on their last visit in 2011 that the design of detention centers in Greece do not respect the CPT standards and have not respected them at least since 1997” (Detention Conditions, 2013). Article 31 of the 1951 Refugee Convention provides that “the Contracting States shall not impose penalties, on account of their [refugees] illegal entry or presence” (UN General Assembly, 1951). The use of detention centers and their prison-like conditions is in clear violation of this article. If the conditions of the detention centers in Greece have been in violation of numerous laws for over ten years, why has no effort been made to change them?

15

Ramapo Journal of Law and Society

The next type of human rights violation is the varied reception conditions in each Member State. The 1951 Convention outlines the basic responsibilities of receiving states towards incoming refugees in Articles 16, 21, and 24. They include access to courts, housing, and social security (UN General Assembly, 1951). However, some member states, such as Greece, are unable to cope with the number of applicants in their country, so these guarantees are not being fulfilled (Bacic, 2012, p. 65). Asylumseekers are being cheated out of the resources they are afforded through the 1951 Convention and their rights are being violated. Oftentimes asylum-seekers are left homeless on the streets of cities and given no resources for obtaining basic housing, food, or medical care (M.S.S v. Belgium and Greece, 2011).

These key shortcomings of the Dublin system, and in particular burden-sharing, are clearly revealed in landmark European decisions on refugees, primarily M.S.S. v.

Belgium and Greece (2011), examined next. It is important to note that this is not an isolated case, but just one example of a refugee suffering due to the failing international refugee regime. It is helpful to analyze how the courts have begun to deal with the issue of burden-sharing and how they critique the overall refugee regime.

M.S.S. v. Belgium and Greece (2011) The problem of burden-sharing is very different from the problem of sexual orientation as a missed group in the 1951 Convention. Burden-sharing became a major difficulty due to the parameters of asylum established by the Dublin system, while sexual orientation as a missed group was simply not considered during the drafting of the 1951 Convention. However, both shortcomings result in human rights violations.

In 2008, an Afghan national left Kabul and entered the European Union through Greece after traveling through Iran and Turkey. The applicant arrived in Greece and continued to travel until he arrived in Belgium in 2009 where he immediately applied for asylum (M.S.S. v. Belgium and Greece, 2011). However, Belgian authorities submitted a request for the applicant to be transferred back to Greece, because under the Dublin Regulation applications for asylum must be submitted in the first European Union Member State an asylum-seeker enters. After the request for transfer was made, the UNHCR offered a letter to the Belgian Minister for Migration and Asylum Policy expressing their condemnation of the decision to invoke the Dublin Regulation. The UNHCR cited the highly criticized reception conditions in Greece and the overwhelming number of asylum applications Greece had as reasons for Belgium to review the application (M.S.S. v. Belgium and Greece, 2011).

Despite the plea from the UNHCR to cancel the transfer request and Greece remaining unresponsive to the request within the two-month period provided for by the Dublin Regulation, Belgian authorities moved to follow through with the removal. The applicant lodged an appeal to the Alien Appeals Board and claimed he would not only be detained upon arrival in Greece in horrible conditions, but also not receive the proper attention regarding his asylum application and would ultimately be sent back to Afghanistan and put in danger (M.S.S. v. Belgium and Greece, 2011). The appeal was denied and the applicant was put on a plane to Greece. Upon arrival in Athens the applicant was placed in a detention center where he was locked up in a small space with twenty other detainees, had restricted access to toilets, was not allowed out into the open air, was given very little to eat and had to sleep on dirty mattresses or on the bare

The International Refugee Regime: A Failing System

floor (M.S.S. v. Belgium and Greece, 2011). After a few days he was released with no money, resources, or a place to go.

Due to these desperate conditions, the applicant attempted to leave Greece but was intercepted and arrested. The applicant was returned to the detention center for a second time and cited that this time he was beaten by the police (M.S.S. v. Belgium and Greece, 2011). After his release the applicant continued to live on the streets and survived by taking donations from a local church. No social services or housing were ever offered to him by the Greek authorities. After this experience the applicant lodged a claim and argued that Articles 2, 3, and 13 of the European Convention on Human Rights were violated (M.S.S. v. Belgium and Greece, 2011). These articles refer to the applicant’s right to life, right against inhuman or degrading treatment, and right to an effective remedy (Council of Europe, 1950).

The European Court of Human Rights ruled that Articles 3 and 13 were violated and awarded the applicant compensation. In regards to the Greek detention centers, the Court acknowledged the burden that Greece faced, but ruled that “the situation could not absolve Greece of its obligations under Article 3” (M.S.S. v. Belgium and Greece, 2011). The conditions inside the prison and the allegation of bodily harm were coupled with various reports by international bodies and non-governmental organizations such as the UNHCR and the European Committee for the Prevention of Torture that confirmed that the immediate placement of asylum-seekers in detention centers is normal practice in Greece. These two forms of evidence were sufficient to rule the detention, albeit short, violated the applicant’s right against cruel or inhuman treatment.

The Court also ruled that Article 3 was violated based on the living conditions the applicant had to suffer through after applying for asylum. The applicant “spent months living in extreme poverty, unable to cater for his most basic needs- food, hygiene, and a place to live- while in fear of being attacked and robbed” (M.S.S. v. Belgium and Greece, 2011). While Article 3 of the European Convention on Human Rights does not explicitly oblige Member States to provide financial assistance to asylum-seekers, the Court found this situation particularly serious. The Court stated that the Greek authorities had to have known the applicant was homeless, especially considering that there are fewer than 1,000 placements available in reception centers to accommodate tens of thousands of asylum-seekers (M.S.S. v. Belgium and Greece, 2011). Due to these findings on Article 3, the Court did not examine the claims based on Article 2 of the Convention.

Next, the Court examined if Greece violated Article 13 of the European Convention on Human Rights that guarantee an effective remedy for a violation of a right. The Court found that while guarantees in Greek law for the protection against arbitrary removal of an asylum-seeker existed, they were not being put into practice.

The Court found numerous faults within Greece’s asylum procedure, such as: “insufficient information about the procedures to be followed, the lack of a reliable system of communication between authorities and asylum-seekers, the lack of training of the staff responsible for conducting interviews with them, a shortage of interpreters and a lack of legal aid effectively depriving asylum-seekers of legal counsel” (M.S.S. v.

Belgium and Greece, 2011). Furthermore, while the Greek authorities had an appeal process in place, the Court found the average duration of an appeal was more than five years, and thus did not constitute an effective remedy (M.S.S. v. Belgium and Greece, 2011).

17

Ramapo Journal of Law and Society

The Court also examined the possible violations of Articles 3 and 13 committed

by Belgium. The Court condemned the decision of the Belgian authorities to expose the applicant to the asylum process in Greece despite the letter Belgium received from the UNHCR and the unanswered request to Greek authorities. The Court also ruled that by transferring the applicant to Greece, the Belgian authorities “knowingly exposed him to detention and living conditions that amounted to degrading treatment,” in violation of Article 3 (M.S.S. v. Belgium and Greece, 2011). The Court also found that the appeals process in Belgium did not meet the requirements of the Convention. The outcome of the case was the immediate review of the applicant’s asylum request by Greece, as well as a combined total of 37,975 Euros from Greece and Belgium.

The Dublin Regulation, the story of Purya, and the case of M.S.S. v. Belgium and Greece show that the asylum procedure in Greece is not working and that there is no possible way for Greece to have a functional or effective asylum process. The overwhelming majority of asylum applications are denied, there are little to no social services provided, applicants very often end up serving time in foul detention centers, and their human rights are violated in the process. To fix it, the Dublin system needs to be reformed, reception services in Greece improved, and Greece needs to modify its detention centers to comply with international standards. The goal of keeping the number of refugees accepted into the European Union as small as possible needs to be reevaluated. If Greece continues to stand as the bearer of the burden for the majority of asylum applications, then human rights violations will continue to occur and thousands more stateless people that are deserving of asylum status will be denied.

Conclusion The international refugee regime was founded through a series of reactionary responses to violent conflicts around the world that together created the patchwork system that is in place today. The way in which this system was created explains many of its limitations. One of the most fundamental issues of the regime is that the 1951 Convention Relating to the Status of Refugees was not originally drafted to bear the weight of the entire international regime. The drafters of the convention were dealing with the consequences of World War II and using retrospection to create a body of international law to deal with the specific challenges facing the international community at that time. In order to build a successful international refugee regime, the gaps created by this backward-looking convention need to be filled in and new legislation needs to be passed.

One of the limitations of the 1951 Refugee Convention is sexual orientation as a missed group. The drafters of the Convention were not concerned with LGBT refugees, as the issue was not acknowledged at the time the Convention was fashioned. In the twenty-first century, LGBT tolerance is a spotlight topic throughout the international community. Currently the international refugee regime is attempting to create guidelines on sexual orientation as a group deserving of protection using the five categories listed in the 1951 Convention, but this is not working. Other institutions within the United Nations have published instructions and suggested interpretations of the terms that dictate sexual orientation as a group warranting refugee status.

Yet there remain two major problems: unclear terms and overwhelming discretion possessed by those who make the decisions on asylum applications. The lack of clarity of important terms and definitions has directly led to decision-makers having

The International Refugee Regime: A Failing System

an unfair amount of control over the lives of those that are seeking refugee status due to their sexual orientation. This has been illustrated through the story of Tufan as well as the case of HJ (Iran) & HT (Cameroon) v. Secretary for the Home Department (2010) UKSC 31.

The second major limitation of the international refugee regime discussed is the lack of burden-sharing between Member States of the European Union created by the Dublin Regulation. The story of Purya, statistics on reception and detention conditions in Greece, and M.S.S. v. Belgium and Greece (2011) show that burden-sharing is necessary for an effective refugee regime. Greece is the most overwhelmed Member State due to its geographical location. Greece has employed coping techniques in violation of international laws and standards for over ten years. The hundreds of thousands of asylum-seekers that pour into Greece every year suffer the consequences of these coping techniques.

The burden Greece bears is too overwhelming to rectify with simple measures, yet there has been no effort by the European Union or international community to force change. The intent behind the initial Dublin Convention and Dublin Regulation was to overburden the Member States on the periphery of the European Union and ultimately limit the amount of refugees accepted into the EU. But the international refugee regime should be a system that is first and foremost concerned with protecting the rights and providing resources for those people around the world that are faced with lifethreatening persecution. New laws, declarations, and conventions must be drafted that are not reactionary but are forward-looking. The purpose of new legislation must be to sustain an international refugee regime, and the system needs to be tailored to the cause. Change cannot be suggested, change must be demanded.

References: Bacic, Nika. (2012). Asylum Policy in Europe: The Competences of the European Union and Inefficiency of the Dublin System. Croatian Yearbook of European Law and Policy, 8, 41-76. Retrieved from: http://www.cyelp.com/index.php/cyelp/article/view/149 Chalabi, Mona. (2013, December 12). State-Sponsored Homophobia: Mapping Gay Rights Internationally. The Guardian. Retrieved from: http://www.theguardian.com/news/datablog/2013/oct/15/state-sponsoredhomophobia-gay-rights Council of Europe. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950, ETS 5). Retrieved from: http://www.refworld.org/docid/3ae6b3b04.html Eurostat. (2013, October). Asylum Statistics. Retrieved from: http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Asylum_statistics Feller, Erica. (2001). International Refugee Protection 50 Years On: The Protection Challenges of the Past, Present, and Future. International Review of the Red Cross, 83(843), pp. 581-606. Retrieved from: http://www.icrc.org/eng/assets/files/other/581-606_feller.pdf

19

Ramapo Journal of Law and Society

Gallagher, Dennis. (1989). The Evolution of the International Refugee System. International Migration Review, 23(3), pp.579-598. Retrieved from: http://www.jstor.org/stable/2546429 Greek Council for Refugees. (2013). Statistics: Greece. Retrieved from: http://www.asylumineurope.org/reports/country/greece/statistics ILGA (2012). Lesbian and Gay Rights in the World [Web Graphic]. Retrieved from: http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/26/whatever-thesupreme-court-decides-these-nine-charts-show-gay-marriage-is-winning/ Jaeger, Gilbert. (2001). On the History of the International Protection of Refugees. International Review of the Red Cross, 83(843), pp.727-737. Retrieved from: http://www.icrc.org/eng/assets/files/other/727_738_jaeger.pdf Jansen , Sabine and Thomas Spijkerboer. (2011). Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe. Amsterdam: Vrije Universiteit Amsterdam. Retrieved from: http://www.refworld.org/docid/4ebba7852.html HJ (Iran) & HT (Cameroon) v. Secretary of State for the Home Department. [2010] UKSC 31 M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011. Retrieved from: http://www.refworld.org/docid/4d39bc7f2.html Syrian Refugees. (2014, February). Syrian Refugees. Retrieved from: http://syrianrefugees.eu/ The European Parliament and the Council of the European Union. Dublin Regulation 2003. Official Journal of the European Union, Vol. 29. Retrieved from: http://easo.europa.eu/wp- content/uploads/Reg-604-2013-Dublin.pdf UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951. United Nations Treaty Series, Vol. 189, p. 137. Retrieved from: http://www.refworld.org/docid/3be01b964.html United Nations High Commissioner for Refugees (2008). Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. Retrieved from: http://www.refworld.org/docid/48abd5660.html Wessels, Janna. (2011). Sexual Orientation in Refugee Status Determination. Refugee Studies Centre, 73, pp.1-58. Retrieved from: http://www.refworld.org/pdfid/4ebb93182.pdf Yaghmaian, Behzad. (2005). Embracing the Infidel: Stories of Muslim Migrants on the Journey West. New York, NY: Random House, Inc.

Reversal Legislation in US Senate

The Effect of Staggered Election Cycles on Cosponsorship of Reversal Legislation in the U.S. Senate THOMAS BAUERSCHMIDT SWEENEY* A defining feature of the United States Senate is senators’ division into electoral classes with staggered election cycles. Every two years one third of the Senate faces reelection to a new six-year term, while the other two classes continue their terms uninterrupted. The system of staggered elections causes distinct forms of political exchange between the classes of the Senate in a “cohort effect.” This study analyzes the effect of this political exchange in the context of “reversal legislation.” Reversal legislation occurs when Congress responds to a Supreme Court decision by passing legislation that effectively overturns the Court’s ruling. This paper examines the question of how Senate election cycles affect when senators cosponsor legislation reacting to high profile Supreme Court rulings, a question which falls at the center of several extensive fields of literature concerning elections and the dynamics between Congress and the Court. I create a dataset covering three instances of legislation reversing high profile Supreme Court decisions and test for the presence of a cohort effect using a multivariate regression. On the basis that senators are driven by the need for reelection, I predict that senators in the cohort facing reelection, next, will be more likely to cosponsor legislation that effectively reverses a high profile Supreme Court ruling. The results lead to a more nuanced understanding of when a cohort effect is likely to occur, as well as deeper understanding of reversal legislation.

Literature and Theory It is easiest to begin with an examination of David Mayhew’s Congress: The Electoral Connection. In this piece, Mayhew establishes that senators are driven by the need for reelection, and “whether they are safe or marginal, cautious or audacious, congressmen must constantly engage in activities related to reelection” (Mayhew, 1974, p. 49). According to Mayhew, the focus on reelection permeates congressmen’s decision making and cannot be discounted.

Mayhew argues that representatives engage in three distinct forms of election seeking behavior: advertising, credit claiming, and position taking. The first of these forms, advertising, attempts to create a “favorable image” associated with a senator’s name. Essentially, “a successful congressman builds what amounts to a brand name” (Mayhew, 1974, p. 49). The image is generally empty of real content, primarily attempting to generate name recognition in voters. Generally speaking, “to be perceived at all is to be perceived favorably” (Mayhew, 1974, p. 50). However, congressmen attempt to associate themselves with qualities such as “experience, knowledge, responsiveness, concern, sincerity, independence, and the like” (Mayhew, 1974, p. 49).

Incumbents generally have a significant advantage over challengers in advertising because of the resources at their disposal and the name recognition that is generated simply by being in office. * Thomas Bauerschmidt Sweeney is a graduate of Allegheny College, class of 2014. He is currently working

as a whitewater raft guide, and has worked with Prof. Brian M. Harward on this project.

21

Ramapo Journal of Law and Society

He defines credit claiming as the practice of generating a belief within constituents (or other relevant political actors) that the representative is responsible for desirable actions taken by government. “The emphasis here is on individual accomplishment (rather than, say, party or governmental accomplishment) and on the congressman as doer (rather than as, say, expounder of constituency views)” (Mayhew, 1974, p. 53). Credit claiming, according to Mayhew, most often occurs in the form of “particularized benefits.” These benefits are given to specific group, which is defined narrowly enough that a single congressman can claim credit for providing the benefits.

Also, “each benefit is given out in apparently ad hoc fashion (unlike, say, social security checks) with a congressman apparently having a hand in the allocation” (Mayhew, 1974, p. 54). The most desirable of these credit claiming opportunities (from a congressmen’s point of view) are those which generate large, highly visible, concrete results. It is worth noting that a major limitation of credit claiming opportunities is a congressman’s ability to effectively claim credit for large, government-wide changes. At a certain scale, voters are unlikely to believe that a single congressmen is responsible for such massive changes, limiting the types of legislation/benefits congressmen can take credit for.

The third and final type of election seeking behavior Mayhew describes is “position taking,” defined as “the public enunciation of a judgmental statement on anything likely to be of interest to political actors” (Mayhew, 1974, p. 61). In this arena, “the electoral requirement is not that he make pleasing things happen but that he make pleasing judgmental statements” (Mayhew, 1974, p. 62). Mayhew argues that, while one of the most common forms of position taking is certainly role call votes, congressmen can be quite creative in generating opportunities for position taking. One option is cosponsoring legislation important to constituents. In terms of position taking, congressmen can cosponsor legislation and then go to their constituents, pointing to their support of a particular bill. This is distinct from credit claiming, since the emphasis is on the congressmen’s position on the bill, rather than attempting to generate the perception that the congressmen is responsible for the legislation, as would be the case in a credit claiming endeavor.

Richard Hall complicates this story with his thesis in Participation in Congress (Hall, 1996). Hall argues that “the limits of time and the press of legislative and nonlegislative demands are substantial and have become increasingly so in recent years” (Hall, 1996, p. 23). Essentially congressmen and women are playing a zero-sum game when it comes to participation in Congress, meaning that their limited time and resources restrict the number of ways they can engage the political process. “One of the first lessons that a neophyte legislator learns is that while the demands placed upon him seem to expand geometrically, the supply of time available to meet those demands is, by virtue of universal law, inelastic” (Hall, 1996, p. 28). The opportunities for participation far exceed any given congressman’s time and resources, which means that any effort spent pursuing one avenue of participation could have been spent on some other form of participation and congressmen are forced to choose one over the other.

Hall uses this theory of participation as a zero-sum game to frame the way political scientists ought to examine acts of participation. He argues that, while “the temptation is to distinguish between… those [activities] which are substantive and serious and those which are legislatively superfluous or symbolic… [this temptation] ought to be strongly resisted” (Hall, 1996, p. 25). Hall argues that because of the opportunity cost that accompanies any form of participation, there is no such thing as a

Reversal Legislation in US Senate

superfluous or insignificant act of participation. Any form of participation must have been deemed more important than alternative forms, meaning that any action taken by congressmen and women holds a certain significance that should not be overlooked.

This theory meshes nicely with Mayhew’s arguments, particularly those concerning credit claiming and position taking opportunities. Hall argues that seemingly “superfluous or symbolic” legislative participation is in fact significant.

Mayhew’s theory helps to explain the potential benefits of engaging in legislative activity that seems unlikely to generate productive legislation. Even if a congressmen’s support for a piece of legislation is unlikely to produce real change, such participation may be at the very least an opportunity to engage in position taking. Ultimately, Hall argues that Congressmen are faced with two choices: Whether or not to participate, and how intense the level of participation should be. Mayhew’s theory helps to explain the value and importance of supporting legislation that may be unlikely to actually pass. Any legislative action taken was chosen over alternative uses of congressmen’s resources, and is therefore significant. Even if participation is not expected to result in the passage of a bill, it may very well be a genuine attempt to generate opportunities for credit claiming or position taking and should be considered a significant political act.

This story is further extended by the work of Kenneth Shepsle regarding the effect of overlapping generations in the Senate. Shepsle seeks to explain “the implications of staggered terms” in predicting which senators support legislation that is particularly popular or unpopular among voters (Shepsle, Dickson, & Van Houweling, 2002, p. 2). Shepsle et al.’s argument assumes that constituents “observe a retrospective voting rule (Fiorina 1981) that we call the WHYDFML Principle (“What have you done for me lately?”)” (Shepsle, Dickson, & Van Houweling, 2002, p. 13). This assumption argues that the more recent a representative’s actions are, the more weight constituents will place on those actions in evaluating their senators. Shepsle et al. argue that the WHYDFML theory explains why senators engage in the behaviors outlined by Mayhew in an “especially intense and animated [way] just before elections,” but not why senators would be willing to “[take] ‘hits’ to reputation, [make] sacrifices, [cast] embarrassing votes, and [pass] up opportunities for gain” (Shepsle, Dickson, & Van Houweling, 2002, p. 30, 31).

Shepsle et al. make the point that these seemingly counterintuitive behaviors have been empirically observed, citing the example of a 1991 bill which raised Senate pay in spite of strong voter opposition. The authors argue that which senators supported the bill was largely influenced by the Senate’s structuring into cohorts with staggered election cycles. Shepsle et al. describe a model where senators operate within an “institutional norm” that creates a series of “inter-temporal deals.” The authors claim that, given the opportunity, all senators would place all of the legislation which constituents view positively at the end of their term, immediately before reelection, to maximize the effects of WHYDFML. However, since this is not a feasible option, senators engage in an exchange of sorts, where those senators who are not in the cohort next facing election take the hits, make unpopular votes, etc. with the understanding that the same will be done for them when their cohort is facing reelection.

Shepsle et al. acknowledge that “even with the effects of WHYDFML, [reputation burnishing] is the sort of activity in which [we would expect] a senator [to] engage almost continuously throughout his or her term” (Shepsle, Dickson, & Van Houweling, 2002, p. 30). WHYDFML does not explain why senators would forgo these types of

23

Ramapo Journal of Law and Society

opportunities. Shepsle et al. suggest a punishment regime. In their formulation, senators who break from the exchange by failing to give preference to senators facing reelection are punished later on. When the senator who violates the exchange finds him or herself facing reelection, he or she will be excluded from the exchange. This regime ensures that senators who are not facing reelection will generally give those facing reelection preference on legislation viewed positively by voters.

This result of overlapping generations in the Senate has implications for the way we understand a broad range of topics, particularly how the Senate interacts with other government institutions. In a 2009 study, Shepsle et al. examine how this exchange affects interactions between the Senate and the House. However, the ways in which this exchange might affect interactions between the Senate and the Supreme Court seems to have gone uninvestigated.

There is a broad base of literature covering relationships between Congress and the Courts. A traditional, oversimplified description of separated powers often places the Court beyond Congress’ sphere of influence. However, the literature indicates that there is in fact a complex and nuanced relationship between the two, and that this interaction is an inherent part of the United States legislative structure. The system was designed to blur the edges of interpretive authority between the three branches and prevent any single branch from becoming a final arbiter (Agresto, 1984) (Choper, 1980).

Furthermore, this interaction is a political reality (Macedo, 1990) (Choper, 1980) (Meernik & Ignagni, 1997) (Hettinger & Zorn, 2005).

The precise nature of the relationship between Congress and the Court is complex, nuanced, and somewhat contested. Some authors suggest that while the Court may act strategically when required, it is relatively insulated from Congressional backlash (Segal, Westerland, & Lindquist, 2011) (Segal J. A., 1997) (King, 2007). Other authors such as Anna Harvey and Barry Friedman argue that “the Court is bound by institutional constraints to take account of congressional preferences when making constitutional decisions” (Harvey & Friedman, 2006). Harvey and Friedman argue that these constraints are applied to the Court in constitutional cases as well as statutory rulings. In their 2006 study, Harvey and Friedman do not attempt to identify exactly “where congressional constraints bind [the Court],” or what precisely those mechanisms are.

Tom Clark explores one possible point of constraint in a piece from 2009. Clark argues that Court curbing is a crucial mechanism in Court-Congress relations. Clark’s argument brings together two bodies of literature, covering Court curbing and statutory reversals. While these two topics have often been treated distinctly, Clark brings them together, arguing that “Court curbing can affect judicial independence because it can be a credible signal about waning judicial legitimacy… In particular, the justices believe that legislative attacks on the Court are signals about a lack of public support for the Court” (Clark, 2009, p. 972, 973). Clark argues that Congressional responses to Court rulings can serve as a mechanism to signal the Court on public opinion, and that the Court adjusts its behavior accordingly.

Research on citizen awareness of Supreme Court decisions further informs this theory. James Gibson and Gregory Caldeira argue that the average citizen pays far more attention to the Supreme Court than is generally thought. In a 2009 piece, Gibson and Caldeira examine two data sets generated from national surveys, finding that “people are vastly more knowledgeable about politics than is typically portrayed” (Gibson &

Reversal Legislation in US Senate

Caldeira, 2009, p. 435). Citing work by Johnston, Hagan, and Jamieson (2004) and Valerie Hoekstra (2000,2003), Gibson and Caldeira argue that, while citizens are generally well informed regarding the Court, they are particularly so “as an election approaches,” when the controversies involved are well covered by the media, and when a decision directly affects them (Gibson & Caldeira, 2009). This grants further legitimacy to theories that public opinion may affect the Court via Congressional action.

Additionally, it opens the possibility for congressmen and women to leverage Court decisions for election-seeking purposes.

If voters are aware of Court rulings, and particularly so prior to elections, Congressional response to unfavorable Court decisions may serve as powerful position taking and credit claiming opportunities for representatives, particularly in response to high profile decisions. This concept is further supported by the work of James Meernik and Joseph Ignagni (1997). Meernik and Ignagni examine Congressional attempts to reverse constitutional rulings by the Supreme Court. Meernik and Ignagni argue that “because its members are substantially motivated by the drive for reelection, they give voice to the views of the general public, special interest groups, and the interests of the states they represent” (Meernik & Ignagni, 1997, p. 451). Their data supports this argument, as they find that the most influential factor in predicting attempts to reverse a constitutional ruling by the Court is public awareness.

This paper seeks to examine this complex relationship between the Court, Congress, and the public. Specifically, if the cohort effect observed by Shepsle affects senators’ decisions to cosponsor legislation that attempts to reverse a salient Supreme Court ruling. My broad hypothesis is that senators in the cohort next facing reelection will be more likely to cosponsor legislation reversing Supreme Court rulings. The opportunity to chastise the court may provide an opportunity for Mayhew’s credit claiming, and certainly creates opportunities for position taking. The significant impact of public opinion on reversal legislation, found by Meernik and Ignagni (1997), suggests that Senators will be conscious of publicly salient cases and have an incentive to capitalize on such an opportunity. Shepsle’s research indicates that the members of the other two cohorts have an incentive to back off and give these opportunities to members of the vulnerable cohort. I examine co sponsorship with the idea that it is a more substantial and meaningful (according to Hall’s theory) form of participation than simple roll call votes, as well as the fact that it extends the range of possible pieces of legislation to bills that were never voted on. I analyze reversals of statutory and constitutional rulings to cover a broader variety of high profile Supreme Court rulings.

Methods For this study I constructed a dataset covering three separate instances in which Senate legislation was introduced which would effectively reverse a ruling by the Supreme Court. Each piece of legislation was introduced in a different Congress, creating three hundred distinct observations. For each subject, a variety of data was collected, discussed below in greater detail. The data was then run through a multivariate probit regression, controlling for several important variables. To begin, I selected three pieces of legislation responding to salient Supreme Court rulings. The study is restricted to legislation responding to salient cases for several reasons. One is that “congressional overrides typically occur only in particularly salient or egregious cases of statutory misinterpretation” (Hettinger & Zorn, 2005, p. 8). Additionally, the

25

Ramapo Journal of Law and Society

theory of electoral incentives previously discussed indicates that Senators will have the greatest incentive to cosponsor reversal legislation when public awareness is high. High public awareness makes position taking and credit claiming more effective, making participation in high profile situations more beneficial for senators seeking reelection.

While it may be possible and worthwhile to examine differences between highly publicized cases and less salient decisions, that is beyond the scope of this paper.

The cases in question all appeared in both the New York Times and Wall Street Journal, the two most widely read newspapers in the United States (Paperboy, 2013).

The Court rulings were controversial and highly publicized, making them ideal selections for this study. The first decision drew both strong criticism and staunch support from opposing public policy groups on the issue (Greenberger, 2002). The second and third decisions were each opposed by a majority of the American public (Eggen 2010; Castle Coalition 2014). The high levels of publicity and controversy surrounding these bills should provide ideal opportunities for credit claiming and position taking, making these cases ideal selections for this study. Each bill selected specifically references the corresponding Court ruling, and makes clear the intent of the legislation to reverse the effects of the Court’s decision. Each bill was introduced in a different congress, with a different class facing reelection for each bill. This selection process is designed to create variety within the dataset while still focusing on cases that are likely to matter to the general public, allowing us to test if a cohort effect makes senators more likely to cosponsor reversal legislation of high profile Supreme Court rulings.

Bills S.2520: PROTECT Act The first bill included in the dataset is the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (PROTECT ACT). In April of 2002, the Supreme Court delivered a ruling striking down the Child Pornography Prevention Act (CPPA) of 1996. The Court ruled that the bill was overbroad in proscribing certain types of images, particularly the banning of “any … [virtual,] computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct,” and “any sexually explicit image that is ‘advertised, promoted, presented, described, or distributed in such a manner that conveys the impression’ it depicts ‘a minor engaging in sexually explicit conduct’" (The Oyez Project, 2014). The ruling dealt a blow to prosecutors nationwide who “had come to rely on the law in bringing prosecutions” (Greenhouse, 'Virtual' Child Pornography Ban Overturned, 2002).

The Senate responded quickly. On May fifteenth, Senator Hatch introduced the PROTECT Act. In his opening statement, Senator Hatch stated, “While I firmly respect the Supreme Court's role in interpreting the Constitution, the decision left some gaping holes in our nation's ability to prosecute child pornography effectively” (Senator Hatch (UT), 2002). Senator Hatch went on to highlight the most significant provisions of the act, including provisions to empower “prosecution to proceed when the child pornography includes persons who appear virtually indistinguishable from actual minors,” and prohibiting “the pandering or solicitation of anything represented to be obscene child pornography” (Senator Hatch (UT), 2002).

Reversal Legislation in US Senate

Nine other senators joined with Senator Hatch, cosponsoring the legislation, and the bill was passed in the Senate with unanimous consent (Library of Congress, 2002).

S.1313: Protection of Homes, Small Businesses, and Private Property Act The second bill included in the data set comes out of the 109th Congress. In 2005, the court ruled on the case of Kelo v. City of New London. The case arose out of the Connecticut town of New London, where the city seized citizen’s private property with the intent of selling the land to private developers to stimulate the economy. The city claimed that such a seizure was viable under the Fifth Amendment, but “the property owners argued taking private property to sell to private developers was not public use” (The Oyez Project, 2014). The court handed down a 5-4 decision in favor of New London, ruling “that public use was properly defined more broadly as ‘public purpose’" (Greenhouse, Justices Rule Cities Can Take Property for Private Development, 2005).

Many viewed the ruling as an assault on property rights, including Justice O’Connor, who warned “ The government now has license to transfer property from those with fewer resources to those with more” (Greenhouse, Justices Rule Cities Can Take Property for Private Development, 2005).

The Senate responded with the Protection of Homes, Small Businesses, and Private Property Act of 2005. Introduced by Senator John Cornyn, the bill specifically addressed the Kelo ruling, describing the case as “alarming,” and arguing that “the Court has `effectively . . . delete[d] the words `for public use' from the Takings Clause of the Fifth Amendment' and thereby `refus[ed] to enforce properly the Federal Constitution'”(Library of Congress, 2005). The bill’s provisions were incredibly straight forward, stating simply that “the power of eminent domain shall be available only for public use,” “the term `public use' shall not be construed to include economic development,” and that the act applies to federal and state uses of eminent domain (Library of Congress, 2005). The bill was cosponsored by thirty-two senators in addition to Senator Cornyn, and ultimately died after being referred to the committee on the judiciary.

S.3295: DISCLOSE Act The third bill included in the data set was introduced in reaction to the decision by the Supreme Court in the case of Citizens United v. Federal Election Commission.

The case was brought by Citizens United, against the FEC over Citizens United’s movie titled Hillary: The Movie. Citizens United argued that portions of the Bipartisan Campaign Reform Act of 2002 were unconstitutional violations of free speech (The Oyez Project, 2014). In a “sharp doctrinal shift” the Court ruled in favor of Citizens United, overruling precedents established in Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003) (Liptak, 2010). The ruling was quite broad, and liberated corporations to spend unrestricted and undisclosed quantities in independent expenditures supporting or attacking political candidates. The case received a huge amount of publicity and was hotly contested among the Justices, with the minority accusing the majority of committing “a grave error in treating corporate speech the same as that of human beings” (Liptak, 2010).

The Senate responded within months, when Senator Charles Schumer introduced the Democracy Is Strengthened by Casting Light On Spending in Elections Act (DISCLOSE Act). In the bill’s General Findings, it is stated that the American public is

27

Ramapo Journal of Law and Society

right to attempt to regulate corporate spending in elections, and that “The Supreme Court's decision in Citizens United v. Federal Election Commission on January 21, 2010, reverses established jurisprudence and sound policy to greatly increase the dangers of undue special interest influence over the democratic process. That decision has opened the floodgates for corporations and labor unions to spend unlimited sums from their general treasury accounts to influence the outcome of elections” (Library of Congress, 2010). The bill was designed to “[close] certain loopholes and [rely] on enhanced disclosure… to level the political playing field so that special interests do not drown out the voice of the average voter” (Senator Schumer (NY), 2010). Forty-nine senators joined Senator Schumer in cosponsoring the legislation, and the bill eventually died after being referred to the Committee on Rules and Administration.

Variables Below is a discussion of the variables included in the regression analysis.

Cosponsorship The main dependent variable for this study is whether or not a senator cosponsors legislation. Sponsorship is lumped in under this category. While it is probable that there are differences between motivations for sponsorship and cosponsorship of legislation, there are not sufficient observations in this dataset to establish a meaningful relationship, and the logic of electoral incentives and cohort effect still apply. Cosponsorship is used as the dependent variable because it represents a measurable effort of participation, which is inherently significant (Hall, 1996).

Additionally, focusing on cosponsorship allows for the inclusion of bills which never go to a vote. This is important because even if a bill is never voted on, it may still represent a legitimate attempt at position taking by a senator, and possibly credit claiming as well.

To exclude such legislation would be to ignore potentially significant participation in the Senate. Data on cosponsorship was obtained from the Library of Congress’ online THOMAS database, and is coded as a binary variable with 0 indicating that a given senator did not cosponsor the legislation while 1 indicates that the senator did cosponsor the bill.

Senate Class The primary independent variable used is a senator’s electoral class. This variable is based on Shepsle’s theory of staggered election cycles. Shepsle’s theory indicates that senators that are not facing reelection in the next election cycle will give preferential legislation to the class that is facing reelection. As such, this variable is also coded as a binary, with 1 indicating that the senator is in the class next facing reelection, and 0 indicating that he or she is a member of either of the other two classes. According to Shepsle’s theory, we expect to see a positive relationship between the Class variable and Cosponsorship. A positive relationship would indicate that the cohort effect is at work, and senators not facing reelection are giving preference to the class facing reelection in the coming election cycle. The legislation included in the dataset comes from the 107th, 109th, and 111th Congresses. In each of these congresses a different class was facing reelection, giving a consistent variation within the data.

Reversal Legislation in US Senate

Electoral Vulnerability This variable is added to accommodate variation in electoral pressures facing senators. Senators who are likely to face tough electoral competition in coming elections are likely to be more motivated to engage in the election-seeking behaviors described by Mayhew than senators in safer seats. More specifically in this case, senators are expected to engage in position taking and possibly credit claiming by cosponsoring reversal legislation. The electoral vulnerability variable is included to control for this dynamic. The electoral competition facing a senator is operationalized in the form of a Holbrook and Van Dunk index (HVD index). The index is formed using “district-level state legislative election results that account for the average margin of victory along with the presence of uncontested and ‘safe’ seats” (Shufeldt & Flavin, 2012). A higher HVD index indicates more intense competition in elections.

The HVD index is used rather than a Ranney index because the HVD index was designed to measure the level of competition between candidates, while the Ranney index was intended to measure the level of party competition within a state.

Accordingly, “researchers should use the HVD measure when the mechanism of interest is the electoral pressure a legislator (and future candidate for reelection) faces from his or her constituents” (Shufeldt & Flavin, 2012). The HVD measure for each year was obtained from data publicly available from Carl Klarner through Indiana State University. For each observation, a four-year HVD index for that particular year was recorded, with a predicted positive correlation between the HVD index and cosponsorship.

Distance From Median ADA Score This variable is included in order to account for ideological factors in the legislation. Cosponsoring legislation will only electorally benefit senators whose constituents support the bill’s position. A conservative senator, with conservative constituents, is not likely to benefit from supporting a piece of liberal legislation. The expectation of the cohort effect is dependent upon senators seeking reelection, and therefore it is crucial to control for the ideology of the bills included in the study. In order to do this, I use rankings from Americans for Democratic Action. ADA scores are based on a senator’s votes on twenty pieces of critical legislation from a given year.

Scores range from 0 to 100, with 0 being totally conservative and 100 being completely liberal. For each piece of legislation I calculate the median ADA score of the senators who cosponsor the bill. Using the median ADA score as a measure of how liberal or conservative the bill is, I then calculate the difference between each senator’s ADA score and the median score for the bill. This number is converted to an absolute value to create a measure of distance from the median score, with a higher number indicating a greater ideological distance from the bill. The expectation for this control is an inverse relationship with cosponsorship, presuming that senators who are ideologically distant from a bill will be less likely to support, let alone cosponsor the legislation.

Tenure in office This control is relatively straightforward. The measure is the number of years a senator had been in office at the time the legislation was introduced. The expectation is that senators with longer tenures will have a greater understanding of the opportunities presented by such legislation. In addition to appreciating the opportunity, veteran senators are more comfortable and experienced in introducing legislation, and are

29

Ramapo Journal of Law and Society

therefore more likely to engage in this type of behavior (Schiller, 1995). Therefore, tenure in office is expected to have a positive relationship with cosponsorship, operating on the theory that more experienced senators will have a greater understanding of the opportunity as well as being more comfortable cosponsoring legislation challenging Court rulings.

Leadership Position This is a variable recording whether or not a senator holds a leadership position within the Senate. For this dataset the definition of a leadership position was obtained from the Senate Historical Office and includes the President pro tempore, Majority and Minority Leaders and Whips, the Republican Conference Chairman, Policy Committee Chairmen for both parties, and Senate Campaign Committee Chairmen from both parties. The information was obtained from the Congressional Directory for the 107th, 109th, and 111th Congresses. The prediction for this variable is that there will be a positive correlation with cosponsorship, on the basis that senators in prominent positions attract more pressure from constituents and interest groups to propose legislation than less prominent senators (Schiller, 1995).

Variables and Specific Hypotheses Dependent Variable: Cosponsorship of legislation, defined to include both bill introduction and cosponsorship, coded as a binary.

0 = Did not cosponsor bill 1 = Cosponsored bill Figure 2.1: Independent Variable & Controls Expected Operationalized Variable Direction of via: Relationship Binary variable, class facing reelection Senate Class* + coded as 1, other two classes coded as 0 Electoral 4 year HVD index + Vulnerability Absolute value of difference between Distance From senator’s ADA score and Median ADA Score median ADA score of bill’s cosponsors Years in office at Tenure + time of introduction Leadership positions Leadership identified by Senate + Position Historical Office * Primary Independent Variable

Reversal Legislation in US Senate

Hypotheses • Hypothesis 1: Membership in the class facing reelection in the next election cycle will increase the likelihood of a senator cosponsoring reversal legislation.

• Hypothesis 2: Senators who are more electorally vulnerable will be more likely to cosponsor reversal legislation.

• Hypothesis 3: Senators who are ideologically distant from the bill will be less likely to cosponsor reversal legislation.

• Hypothesis 4: A longer tenure will make a senator more likely to cosponsor reversal legislation.

• Hypothesis 5: Holding a leadership position will make a senator more likely to cosponsor reversal legislation.

Data Analysis Initial results of the regression show the P-value for the likelihood ratio chi squared value to be 0, indicating that the variables are related in a significant way. The coefficients for each variable are shown below.

Figure 3.1: Regression Results Senate Class

-0.117

Electoral Vulnerability

-0.000

ADA Score

-2.759***

Tenure

-0.019*

Leadership Position

-0.624*

* P-Value < 0.10

** P-Value < 0.05

*** P-Value < 0.01

The most influential control is clearly the ADA Score, which controls for a senator’s ideological position relative to the bill’s other sponsors. This variable also passes the most robust measure of statistical significance, with a P-Value below 0.01.

The other statistically significant variables were a senator’s tenure at the time the bill was introduced and whether or not the senator held a leadership position. The measures for senate class and electoral vulnerability were not statistically significant.

Results of Hypotheses Hypothesis 1: Membership in the class facing reelection in the next election cycle will increase the likelihood of a senator cosponsoring reversal legislation.

The hypothesis for Senate class returned statistically insignificant results, indicating that the cohort effect described by Shepsle et al. was not apparent.

31

Ramapo Journal of Law and Society

Hypothesis 2: Senators who are more electorally vulnerable will be more likely to cosponsor reversal legislation.

The hypothesis for electoral vulnerability also returned statistically insignificant results, indicating that electoral vulnerability was not an influential factor in a senator’s decision to cosponsor legislation.

Hypothesis 3: Senators who are ideologically distant from the bill will be less likely to cosponsor reversal legislation.

The hypothesis for ideological position relative to the median cosponsor returned statistically significant results. The coefficient is far and away the largest, and in the expected direction with an inverse relationship. This indicates that ideological positioning does play a major role in a senator’s decision to cosponsor legislation, and that the more ideologically distant a senator is from those sponsoring the bill the less likely he or she is to cosponsor the legislation.

Hypothesis 4: A longer tenure will make a senator more likely to cosponsor reversal legislation.

The hypothesis for a senator’s tenure returned statistically significant results, but in the opposite direction than was expected. This indicates that, rather than being more likely to cosponsor reversal legislation, the longer a senator held a seat, the less likely he or she was to cosponsor the bill. The coefficient is clearly the smallest of the statistically significant controls, however it is important to note the difference in the variable being measured. The coefficient for holding a leadership position (discussed below) is substantially larger than the tenure coefficient, but the leadership variable is a binary, meaning that at most it can by multiplied by a factor of one. Tenure on the other hand can be multiplied by notably larger factors, e.g. a senator with a tenure of twenty years would multiply the coefficient by a factor of twenty. Therefore, while the tenure coefficient is notably smaller than the coefficient for holding a leadership position, one variable does not necessarily have a measurably greater impact on the overall outcome.

Hypothesis 5: Holding a leadership position will make a senator more likely to cosponsor reversal legislation.

This hypothesis returned statistically significant results, but also in the opposite direction than was predicted. This indicates that holding a leadership position makes a senator significantly less likely to propose reversal legislation. The coefficient is notably smaller than that for the ideology measure, indicating that holding a leadership position is less influential than ideology, but as discussed above its overall impact may be comparable to that of the tenure variable.

Discussion and Conclusions The returns on most of the hypotheses were unexpected, but consistent with one another. The primary hypothesis, that there would be a measurable cohort effect in sponsoring reversal legislation of high profile Supreme Court rulings, was disproven.

This could indicate that senators do not view reversal legislation as a worthwhile exercise in position taking or credit claiming. It may very well be that even in high publicity cases constituents are not sufficiently aware of the Court’s decision or of the

Reversal Legislation in US Senate

responding legislation to make reversal legislation a practical position taking mechanism. If such legislation would influence only a small fraction of constituents, Hall’s theory would indicate that senators are likely to pursue other, more efficient methods of position taking. It is important to note that this explanation does not necessarily contradict authors such as Gibson and Caldeira, who argue that citizens are well informed regarding Supreme Court action. Citizens may be conscious of Court decisions, but less so when it comes to legislation responding to those decisions. It may also be the case that citizens are aware and informed on rulings and reversal legislation, but senators still perceive a lack of constituent awareness and act accordingly.

The lack of an observable cohort effect raises interesting questions for Shepsle’s work. It seems likely that the cohort effect is more pronounced in different types of legislation. These results indicate that reversal legislation is not an area in which a cohort effect is measurable. However, this does not necessarily run counter to Shepsle’s theory. Given the electoral incentives driving the cohort effect, legislation which is well suited for position taking and credit claiming will likely demonstrate a strong cohort effect. Measuring the intensity of a cohort effect across various types of legislation could potentially allow scholars to identify the types of legislation which senators view as most beneficial in pursuing reelection. In this way, the cohort effect may be used to better understand senators’ motives in passing particular types of legislation.

The second hypothesis, that senators facing highly contested elections would be more likely to cosponsor reversal legislation, was also disproven. The conclusion that the cohort effect was not in play would lead us to expect this result. Additionally, the fact that electoral pressure did not play a significant role reinforces the theory that senators do not perceive this type of legislation to be significant to voters. In fact, if senators feel there are more efficient ways to use their time and resources, those facing contentious reelections would have an even greater incentive not to cosponsor such legislation, as it would detract from opportunities to engage in more efficient forms of position taking and credit claiming.

The third hypothesis, that senators ideologically distant from a bill would be less likely to cosponsor the legislation, was the only hypothesis which returned the expected results. The results are by no means revolutionary, but they may also tie into ideas of position taking and reelection. If constituents are not naturally aware of reversal legislation, there would be little to be gained from cosponsoring a bill. In such a situation, senators may default to party allegiance, reinforcing their position as a member of their respective party. Even if voters are not aware of a bill’s specific points, cosponsoring a bill with similarly aligned senators would allow senators to add one more piece of legislation to their résumé that reinforces their ideological position. In this situation, cosponsorship would be more of an opportunity for senators to simply maintain their ideological alignment.

The fourth hypothesis, that a longer tenure would make senators more likely to cosponsor reversal legislation, returned statistically significant results, but in the opposite direction than was predicted. This factor is difficult to explain, but may be due to longer-serving senators’ greater experience and specialization. It is possible that well established senators better understand how to focus their energies in pursuit of reelection, and appreciate that reversal legislation appears to hold low salience for voters, while newer senators are less informed, and therefore more willing to spend time and energy cosponsoring legislation which is of little significance to voters.

33

Ramapo Journal of Law and Society

Another possible explanation for newer senators’ greater inclination to cosponsor reversal legislation comes from Hall’s Participation in Congress. Hall endorses a theory of “rational apprenticeship,” in which freshman legislators tend to be less active than their more senior colleagues because they “consistently suffer from informational disadvantages… [and] a relative shortage of opportunities, networks, and resources to pay the marginal information and political transaction costs” (Hall, 1996, p. 102). It may be the case that less experienced senators who lack the social networks and informal influence carried by veteran legislators are forced to resort to more formal tools such as cosponsorship to pursue their political goals. More senior senators, on the other hand, may be less likely to cosponsor reversal legislation if they have more efficient and effective means than are available to less experienced senators.† The fifth hypothesis, that holding a leadership position would make a senator more likely to cosponsor reversal legislation returned statistically significant results in the opposite direction than expected as well. While the hypothesis was disproven, it is in keeping with the other results. The expectation that leadership would be more likely to cosponsor the legislation was based on the premise that Senate leaders receive additional pressure from constituents and interest groups to propose and support legislation. However, the results from the other hypotheses indicate that reversal legislation is relatively insignificant in the minds of voters. If this is the case, then constituents and special interests would be pressuring Senate leadership to focus their energies on other forms of legislation, which would lead us to expect a leadership position to decrease the likelihood of cosponsoring reversal legislation.

While the results of this study largely disprove the proposed hypotheses, they nevertheless reveal important dynamics at work within the Senate. The results show that the cohort effect does not occur in the context of reversal legislation. This would appear to be in large part due to public indifference towards such legislation, or at least the senatorial perception of public indifference. The lack of a measurable cohort effect opens the door for a more nuanced understanding of Shepsle’s theory. These results indicate that the cohort effect may be restricted to certain types of high salience legislation, where voters are likely to be more responsive. If this is the case, testing for a cohort effect could allow scholars to better evaluate senators’ motives in supporting legislation. In instances with a measurable cohort effect, electoral concerns would most likely be at the forefront of a senator’s decision calculus. If there were not an observable cohort effect, as in this study, it would be likely that senators were being driven by motives other than pleasing constituents.

Additionally, the inverse relationships shown between tenure in office and cosponsorship, as well as the inverse relationship between holding a leadership position and cosponsorship, indicate that tenure and holding leadership positions affect the type of legislation a senator will sponsor. It may be the case that senior senators and Senate leaders are under greater pressure from constituents to sponsor certain types of legislation, and are therefore less able to spend resources on reversal legislation. It may also be the case that senior senators and leadership have knowledge that newer senators lack regarding the benefits and costs of reversal legislation, and that they are selfmotivated to avoid such legislation. Further research into these motives would lend to a greater understanding of cosponsorship in the Senate. † This explanation was initially proposed by Dr. Brian Harward while discussing these results.

Reversal Legislation in US Senate

This study creates several starting points for further research. The first is continued statistical analysis of the cohort effect in response to reversal legislation of high profile Court rulings. The scope of this dataset is relatively narrow, restricted to three instances of reversal legislation within the Senate. A more extensive dataset, covering a larger variety of reversal legislation would allow for important corroboration of these results. In addition to further examining cosponsorship of reversal legislation, future research might compare the presence of a cohort effect in various types of legislation. If legislation proven to be of high salience to voters demonstrates a more pronounced cohort effect, scholars could potentially test for a cohort effect as a means of determining senators’ motivations for supporting various types of legislation. In addition to the cohort effect, the results from the tenure and leadership position variables indicate that senior and high ranking senators are either pressured by constituents to support bills other than reversal legislation, or they are aware of some other factor at play which motivates them to avoid such legislation. Further examination of this dynamic would help develop the understanding of reversal legislation and why senators do or do not support such legislation.

The broad conclusion of this study is that the cohort effect is not observed in reversal legislation of high profile Supreme Court decisions. The results indicate that electoral factors do not play a significant role in a senator’s decision to cosponsor reversal legislation. In turn, this indicates that reversal legislation is not an efficient arena for the position taking or credit claiming activities described by Mayhew. Given the insignificance of electoral factors, there would appear to be forces other than reelection motivating senators to check the Court through reversal legislation. The results also indicate that there is a relationship between a senator’s seniority/rank and his or her motivations for sponsoring this type of legislation. These dynamics give us a more nuanced understanding of the cohort effect described by Shepsle, indicating that the exchange between Senate classes may be restricted to legislation that is highly salient for constituents. This more nuanced understanding of the cohort effect creates the possibility for future use of Shepsle’s theory in evaluating senators’ motivations as well as the salience of particular forms of legislation for constituents.

References: Agresto, John. (1984). The Supreme Court and Constitutional Democracy. Ithaca, New York: Cornell University Press.

Castle Coalition. (2014). The Polls Are In. http://www.castlecoalition.org/index.php?option=com_content&task=view&id=43 (accessed 2014, 7-October).

Choper, Jesse H. (1980). Judicial Review and the National Political Process. Chicago: University of Chicago Press.

Clark, Tom S. (2009). “The Separation of Powers, Court Curbing, and Judicial Legitimacy.” American Journal of Political Science (Midwest Political Science Associattion) 53 (4). Pp. 971-989.

35

Ramapo Journal of Law and Society

Eggen, Dan. (2010). Poll: Large majority opposes Supreme Court's decision on campaign financing. 2010, 17-February. http://www.washingtonpost.com/wpdyn/content/article/2010/02/17/AR2010021701151.html (accessed 2014, 7-October).

Gibson, James, and Gregory Caldeira. (2009). “Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court.” The Journal of Politics (Cambridge University Press) 71(2). Pp. 429-411.

Greenberger, Robert. (2002). Supreme Court Strikes Down Ban On 'Virtual' Child Pornography . 17-April. http://online.wsj.com/articles/SB1018955258589085120 (accessed 2014, 7-October).

Greenhouse, Linda. (2002). “'Virtual' Child Pornography Ban Overturned.” New York Times. 17-April. http://www.nytimes.com/2002/04/17/us/virtual-child-pornographyban-overturned.html (accessed 2014, 9-April). ___(2005). “Justices Rule Cities Can Take Property for Private Development.” New York Times. 23-June. http://www.nytimes.com/2005/06/23/politics/23wirescotus.html?pagewanted=all&_r=0 (accessed 2014, 9-April).

Hall, Richard L. (1996). Participation in Congress. New Haven: Yale University Press.

Harvey, Anna, and Barry Friedman. (2006). “Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, 1987-2000.” Legislative Studies Quarterly (Comparative Legislative Research Center) 31(4). pp. 533-562.

Hettinger, Virgina A., and Christopher Zorn.(2005). “Explaining the Incidence and Timing of COngressional Responses to the U.S. Supreme Court.” Legislative Studies Quarterly (Comparative Legislative Research Center) 30(1). pp. 5-28.

King, Chad M. (2007). “Strategic Selection of Legal Instruments on the U.S. Supreme Court.” American Politics Research 35, no. 621.

Library of Congress. Bill Summary & Status, 107th Congress, S.2520: All Congressional Actions. 2002, 15-November. http://thomas.loc.gov/cgibin/bdquery/z?d107:SN02520:@@@X (accessed 2014, 9-April).

—. “Bill Text 109th Congress S.1313.IS.” Thomas. 2005, 27-June. http://thomas.loc.gov/cgi-bin/query/z?c109:S.1313: (accessed 2014, 9-April).

—. “Bill Text, 111th Congress: S.3295.IS.” Thomas. 2010, 3-May. http://thomas.loc.gov/cgi-bin/query/F?c111:1:./temp/~c111zZHvJp:e1719: (accessed 2014, 9-April).

Liptak, Adam. (2010). “Justices, 5-4, Reject Corporate Spending Limit.” New York Times. 21-January. http://www.nytimes.com/2010/01/22/us/politics/22scotus.html?pagewanted=all (accessed 2014, 9-April).

Reversal Legislation in US Senate

Macedo, Stephen. (1990). Liberal Virtues. Oxford: Oxford University Press.

Mayhew, David R. (1974). Congress: The Electoral Connection. New Haven: Yale University Press.

Meernik, James, and Joseph Ignagni. (1997). “Judicial Review and Coordinate Construction of the Constitution.” American Journal of Political Science 41 (2). pp. 447467.

Paperboy. (2013). List of the Most Popular and Influential Newspapers in the USA - See more at: http://www.thepaperboy.com/usa-top-100newspapers.cfm#sthash.BlsjGgOH.dpuf. 2013. http://www.thepaperboy.com/usa-top100-newspapers.cfm (accessed 2014, 9-April).

Schiller, Wendy. (1995).“Senators as Political Entrepreneurs: Using Bill Sponsorship to Shape Legislative Agendas .” Midwest Political Science Association 39(1). pp.186-203.

Segal, Jefferey A., Chad Westerland, and Stefanie A. Lindquist. (2011). “Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model.” American Journal of Political Science 55 (1). pp.89-104.

Segal, Jeffrey A. (1997). “Separation-of-Powers Games in the Positive Theory of Congress and Courts.” The American Political Science Review (American Political Science Association) 91(1). pp. 28-44.

Senator Hatch (UT). (2002). “Statements On Introduced Bills And Joint ResolutionsMay 15, 2002.” Thomas: Congressional Record. 2002, 15-May. http://thomas.loc.gov/cgi-bin/query/F?r107:1:./temp/~r107xvvB4h:e0: (accessed 2014, 9-April).

Senator Schumer (NY). (2010). “Congressional Record, 111th Congress, S.3295 Introductory Remarks.” Thomas: Congressional Record. 03-May. http://thomas.loc.gov/cgi-bin/bdquery/z?d111:s.03295: (accessed 2014, 9-April).

Shepsle, Kenneth A., Eric S. Dickson, and Van Houweling. (2002). Bargaining in Legislatures with Overlapping Generations of Politicians. http://politics.as.nyu.edu/docs/IO/4751/shepsle1.pdf Shufeldt, Gregory, and Patrick Flavin. (2012) “Two Distinct Concepts: Party Competition in Government and Electoral Competition in the American States.” State Politics & Policy Quarterly 12 (3). pp. 330-342.

The Oyez Project. Ashcroft v. Free Speech Coalition. 2014, 6-April. http://www.oyez.org/cases/2000-2009/2001/2001_00_795 (accessed 2014, 9-April).

—. “Citizens United v. Federal Election Commission.” Oyez. 2014, 9-April. http://www.oyez.org/cases/2000-2009/2008/2008_08_205 (accessed 2014, 9-April).

37

Ramapo Journal of Law and Society

—. Kelo v. City of New London. 2014, 9-April. http://www.oyez.org/cases/20002009/2004/2004_04_108 (accessed 2014, 9-April).

S.B 1070 as a National Lightning Rod

Arizona’s S.B. 1070 as a National Lightning Rod CYNTHIA BURNS* The passage of Arizona’s Senate Bill 1070 in 2010, called the Support Our Law Enforcement and Safe Neighborhoods Act, has unleashed a political debate on illegal immigration in our country. This contentious State Bill, SB 1070, authorized law enforcers to identify, prosecute and deport illegal immigrants. Anti-immigration advocates hailed the bill for its tough stance on illegal immigration whereas proponents of immigration reform derided the law for its potential to discriminate Hispanic communities. Additionally, the bill created a rift between state and federal government on immigration reform, primarily raised questions about states right to write its own immigration laws preempting federal power. This has resulted in legal cases challenging the constitutionality of the law in the Federal Courts.

The legal question raised by Arizona’s immigration law, SB 1070, was if states, Arizona in this case, had the purview to pass immigration legislation believed to be preempted by the authority granted by the Constitution to the federal government. In a split decision, the United States Supreme Court, in Arizona v United States, struck down three of the four challenged provisions of the bill for interfering with federal policy and remanded one-the provision authorizing police to check alien registration papersto the lower courts. The Supreme Court ruling garnered national headlines particularly the provision in S.B. 1070’s Section 3 that created a state misdemeanor for the “willful failure to complete or carry an alien registration document” (S. B 1070, pg. 2).

Colloquially referred to as “show me your papers,” the provision has been viewed as racial profiling (S. B 1070, pg. 2). Indeed, since 2009, Latinos have been perceived as the group most subjected to discrimination. One in ten Latinos have reported being asked by police officers about their immigration status (Becerra etal, 2012). The question of state rights also remained an eminent focus of this debate.

Absent from the legal and public discourse, following SB 1070 and the Court ruling, at least the one presented in national media, is the economic impact undocumented workers have on the economy in general, and on Arizona in particular.

Arizona’s SB 1070 and the USSC ruling raise questions about the implications of Immigration policies on our economy and society. The economic impact, both positive and negative, must be the primary focus of any discussion about proposals to reform the immigration system. Only when legislators and the general public understand the positive impact undocumented workers have on the economy can rational immigration reform be developed, one that puts the country’s economic viability at the forefront.

Although popular perceptions show that illegal immigration drains our economy, historical and economic analysis of immigration demonstrates that illegal immigrants have had minimal impact on the economy, rather, they are integral to our economic success. Since the US - Mexico agreement of 1942, leading to the Bracero Program * Cynthia Burns is a 2014 graduate of the Law and Society program at Ramapo College of NJ. She is

interested in legal and social issues and more recently, has been working with local communities in Bergen county to promote children’s rights. She is a member of the Juvenile Justice Committee of her town and has worked with children charged with minor offenses. She has served on the Advisory Board of the Office for Children of Bergen County, NJ. Currently, she is a court appointed special advocate in Bergen County for children who have been removed from their families due to neglect or abuse.

39

Ramapo Journal of Law and Society

(1942-1964), Mexicans have come to the United States on short-term labor contracts, primarily for agricultural labor. Immigration reforms ended the Bracero program in 1964, however as Roger Daniels notes, seasonal influx of migrant workers continued as it filled in a shortage in farm labor (Daniels, 2004). Immigration laws silently acknowledged and permitted illegal immigration. For instance, the Immigration Reform and Control Act, enacted in 1986, provided a loophole to allow wealthy business owners to claim no knowledge of the legal or illegal status of their workers (Daniels, 2004). This has provided employers sufficient leeway to hire illegal immigrants.

The entry of Mexican laborers, through the Bracero program and later, has resulted in a dual labor market. One category of labor market comprises of United States citizens and immigrants who have entered the country legally, presumably enjoying the full protection of the law (Johnson, 2009). The other category is represented by undocumented workers, many of whom are Latino/a, who are often paid less than minimum wage and who do not have the guarantee of on-the-job health and safety protections. The dual economic structure has added a racial quality to labor as undocumented workers only have a subliminal presence; Chomsky compares the dual structure to the new Jim Crow (Chomsky, 2014). Further, present day legal immigration is targeted at high-skilled workers, those with post-graduate college degrees. Illegal immigrants provide a ready source of workers in agriculture, construction, food processing, building maintenance and other low-end, low-paying jobs at a time when native-born, low-skilled workers in the country’s labor force have dwindled due to higher high school graduation rates and better wages (Hanson, 2009). As Graham Jr. claims illegal immigration is a labor supply issue, thus making it of utmost importance to the economic system and functioning of the United States (Graham Jr., 2004).

Using Arizona’s S.B. 1070 as a backdrop, and Arizona’s unique socio-economic status as a gateway state for the entry of 400,000 illegal immigrants from Mexico as of 2010, this paper will explore what leading economists, including Gordon H. Hanson, author of “The Economic Logic of Illegal Immigration,” believe is the positive effect illegal immigrants have on the economy. Proponents of S.B. 1070 hailed the legislation as a legal means to curtail the negative impact illegal immigrants have on the economy.

On the contrary, economists and legal scholars have written extensively to show that illegal immigrants add to the economy by paying federal income and payroll taxes.

Illegal immigrants provide benefits to United States employers that the legal system of immigration does not. In this context, this paper will examine the challenges of illegal immigration, as highlighted by the debates following Arizona’s law and USSC ruling, to demonstrate the positive contributions that undocumented workers have had on the economy and the integral role they play in the labor force. The paper argues that any immigration reform must be rooted in economic benefits to the United States.

Federal versus State Power to Enact/Reform Immigration Laws The foremost question that has caught the attention of judiciary, federal government and political activists in the case of SB 1070, is if state government can supersede federal government in enacting immigration laws. The Support Our Law Enforcement and Safe Neighborhoods Act, S.B. 1070, enacted in 2010, contains ten provisions that are amendments to legislation already enacted in Arizona. The amendments relate specifically to unauthorized aliens, also referred to as undocumented workers and illegal immigrants. Six sections of S.B. 1070 were accepted

S.B 1070 as a National Lightning Rod

as law, while four provisions, which supposedly preempted federal laws were challenged and the federal government enjoined its enforcement (S.B 1070, 2010). S.B. 1070 garnered national headline for its strong stance on illegal immigration, positioned the legislation as a lightning rod for immigration reform.

The federal government claimed that Arizona overstepped its authority by creating criminal misdemeanor statutes for offences the federal government holds as civil violations. Specifically, the challenge involves Section 2, which requires state officers to make a “reasonable attempt…to determine the immigration status” of any person they stop, detain or arrest if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States”; Section 3, which creates a new state misdemeanor for the “willful failure to complete or carry an alien registration document”; Section 5, which makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor”; and Section 6, which allows a state officer to arrest a person without a warrant if there is probable cause to believe the person has committed a public offense that makes him removable from the country (S.B 1070, 2010).

In a mixed verdict, the Supreme Court ruled 5-3 in Arizona v United States (2012) to uphold the lower courts’ ruling on Sections 3, 5 and 6; Section 2 was remanded. The United States argued that the federal government preempted Arizona’s statute. Recognizing the power of federal government and the need for a uniform immigration policy, Justice Anthony Kennedy used the Supremacy clause to rule that State laws are preempted when they conflict with federal law. Justice Antonin Scalia, in his dissent, recognized state’s interest. Justice Scalia said his colleagues’ decision deprives States of the defining characteristic of sovereignty; in essence it undermines their power to exclude from the sovereign’s territory people who have no right to be there. He argued that the Constitution does not strip states of the authority to protect them from being burdened by an influx of persons. Justice Scalia noted that the Rule of Naturalization was not intended to abrogate states’ power to exclude, but to vindicate it (Arizona v United States, 2012).

Justice Scalia, brings a noteworthy claim to state’s rights to make policies, which is a critical element of our federal structure. Traditionally, states have regulated noncitizen populations through statutes that regulate employment and benefits. In Hines, Secretary of Labor and Industry of Pennsylvania, Et. Al. v. Davidowitz Et Al.(1941) the court ruled that “The national government has exclusive control over the admission of aliens into the United States, but after entry, an alien resident within a state, like a citizen, is subject to the police powers of the state and, in the exercise of that power, state legislatures may pass laws applicable exclusively to aliens so long as the distinction taken between aliens and citizens is not shown to be without rational basis” (Hines, Secretary of Labor and Industry of Pennsylvania, Et. Al. v. Davidowitz Et Al. 1941, p.76). More so, the decision rendered in De Canas Et Al v. Bica Et Al. (1976) gives credence to Arizona’s contention that it is within its rights to enact S.B. 1070. Federal regulation is not preemptive of state regulatory power in the absence of Congress’s clear intent to do so, or if the field, immigration and naturalization, permitted no other conclusion.

Hence, here, Arizona is well within its purview to enact S.B. 1070 and, in legislating S.B. 1070, it has complimented federal law, not hindered it. What is missing however, in this legal debate over federal and state government’s power to address

41

Ramapo Journal of Law and Society

immigration policy, is the attention to Arizona’s specific problems and our economic interests. Does Arizona’s immigration problem, call for a state policy, and can the state policy circumvent economic interest of the country. The following section provides an overview of Arizona’s Immigration problem.

Illegal Immigration in Arizona: How Real Is the Problem?

Illegal immigration is an acute problem in Arizona and our current immigration laws have been ineffective in controlling entry of illegal immigrants. The problem is typical to most border states. For instance in Laredo, Texas, Border Patrol apprehends between 100 and 200 people per day. The daily figure for the entire US Mexico border is about 2,500, totaling some 932,000 in 2003 according to the Department of Homeland Security (Ho, 2010). U. S Census bureau’s 2005 population statistics shows 30% of the nations 35 million immigrants were illegal. It is estimated that 59% of these are immigrants from Mexico (Hanson, 2009). Schmall estimates that the undocumented immigrant population grew by 3.3 million from 2000-2007; between 1999 and 2009, 500,000 illegal immigrants have entered the country each year (Schmall, 2011). Even so, the number of homeland security agents along the southwest border has been tripled; there has been no appreciable decrease in the number of illegal migrant workers entering the country. Arizona’s illegal immigrant population in 2012, was estimated at 360,000 to 400,000. Between 1996 and 2010, the federal government estimated that the illegal immigrant population in Arizona increased 213% (Federation for Immigration Reform, 2012).

The Immigration and Naturalization Service (INS) has reported close to a million or more apprehensions of illegal immigrants each year since 1977, with about 94.2% of those apprehended being Mexican (Daniel, 2004). From 2001 to 2010, an average of 1,374 illegal immigrants were apprehended per day in Arizona. This shows that Arizona’s illegal immigrant population is disproportionate to the other states and hence, the challenges are insurmountable; any positive impact they may have on the economy is overshadowed by the crime rate, illegal weapons trade, human trafficking etc.

(Jacoby, 2004). In Maricopa County, AZ, ground zero for illegal immigration in the state and the focus of much of S.B. 1070’s provisions, 22% of felons are illegal aliens. The offenses committed relate to immigration enforcement, attacks on border patrol agents, drug-related crimes and human trafficking. A Pew Hispanic Center study found that non-citizen Hispanics comprised 74% of immigration offenses, 25% of drug offenses, 8% of white-collar offenses and 6% of firearms offenses of those who were sentenced for federal crimes in 2007. Yet, non-citizen Hispanics are 5.1% of the country’s adult population (Litwin, 2011).

Due to public safety concerns, Arizona authorities were compelled to focus on illegal immigration in their state. Local law enforcement personnel worked with federal immigration authorities, through the passage in 1996 of the § 287(g) program of the Immigration and Nationality Act (INA) for example, to rid the community of felons.

This INA provision is part of a larger government policy of the Illegal Immigration Reform and Immigrant Responsibility Act; it allows the Attorney General of the United States to enter into a written agreement with a state to perform immigration law enforcement functions. The intent of § 287(g) is to give state and local law-enforcement agencies the ability to enforce criminal immigration laws, not civil ones (Litwin, 2011).

S.B 1070 as a National Lightning Rod

A larger challenge for some of the states with high illegal immigrant population is enforcing stricter laws to control illegal immigration, as they may have a direct impact on crime in their states, and lack of support from Congress. In Arizona, California and New York illegal aliens comprise a larger share of the state prison population than they do of the total population. Crime data about illegal immigrants generates fear among native citizens, lawmakers and those charged with keeping the community safe (Camarota, 2009). Arizona’s response in SB 1070 can be ascribed to high crime rate, fear among natives and Congress’s inability to provide the legal resources needed to solve the problem.

Analysis of Illegal Immigration in the United States Post Bracero Program Economists cite employment needs as the driving force behind illegal immigration. Irish and Mexican immigration pattern from the 1960’s to 1980’s is illustrative of this trend (Camarota, 2009). The Bracero program admitted many Mexicans to the United States until 1964; of the 5 million foreign agricultural workers in the country in 1964, a staggering 4.6 million of them were Mexicans. Labor Secretary terminated the Bracero program in 1964; while this marked the legislative death of the temporary worker program, it did not have any impact on the appeal of migrant workers from across the border. They provided low-wage workers to American growers and by Mexican standards, high wage jobs to the migrants and hence, an ad hoc approval program for imported agricultural workers continued in practice.

The death of Bracero opened the floodgate of illegal immigration, especially for agricultural purposes (Daniels, 2004). The INS (Immigration and Naturalization Service) noted in a 1970 report that for the six-year period after the end of the Bracero Program, 71% of the 1,251,406 deportable aliens rounded up were Mexican. That percentage rose from 50% in 1965 to 80% in 1970 (Daniels, 2004).

During the 1980s border security and illegal immigration were at the forefront of immigration issues in the United States. In response to the rise in illegal immigration, the federal government created a number of immigration oversight agencies in the 1980s. Taken together, they represent an alphabet soup of acronyms: INS, INA (Immigration and Nationality Act), ICE (Immigration and Customs Enforcement) and IRCA (Immigration Reform and Control Act), with one reporting in to another. Further, in 1986, President Ronal Reagan through the Immigration Reform and Control Act overhauled the immigration policy. The act granted amnesty to over three million undocumented aliens, making it legal for them to bring their children and parents into the country.

IRCA expanded immigration rather than restrict; it granted legal status to those who had established ties in the country dating to 1982. The Act also created a new classification of seasonal agricultural workers and allocated 5,000 preference visas in 1987 and 1988 to aliens born in countries from which immigration was adversely affected by the immigration reform of 1965. This was referred to as The Lottery (Daniels, 2004). In a Conservative Review article, G. Russell Evans estimated the amnesty program raised the number of immigrants in the country to nine million, an amount that put stress on the national budget and job market (Evans, 1998). The economic cost of IRCA was troubling. Demographer David Simcox estimated that federal assistance, welfare benefits and education costs for children of amnestied workers added up to $78.7 billion, or a subsidy of nearly $30,000 for each immigrant

43

Ramapo Journal of Law and Society

granted legal status (Simcox, 1997). IRCA is considered an extremely generous immigration law. Quota allotments were expanded and allowed the influx of illegal immigrants to continue at levels estimated by the INS at 500,000 a year by the mid1990s (Graham, Jr., 2004).

Since the early 1990s the focus of immigration policies has been almost exclusively on illegal immigration from Mexico. In 1996 the Immigration and Nationality Act was passed. In 2003, again under the auspices of the Department of Homeland Security, ICE was formed, and in 2006, the Department of Homeland Security enacted stricter enforcement policies (Graham Jr., 2004). The number of arrests for working without documentation increased, although this still reflected less than 2% of all undocumented workers and less than 1% of all employers. Given the approximately 12 million illegal immigrants and the estimated 7.6 million United States employers during this time span, the trumped up enforcement resulted in actions against less than one-twentieth of one percent of all potential violators (Schmall, 2011).

Post Bracero period, not only changed the pattern of immigration in the US, but also accentuated the problem by government apathy and poor enforcement. Mexicans account for the bulk of farm workers in our country, since they were first recruited under the Bracero for this purpose during World War II. The only thing that has changed, since Bracero, is whether they come legally, illegally or as temporary guest workers. Migration has become a way of life for many regions of Mexico. Villages function as bedroom communities for dependent families and sustain themselves by exporting their able-bodied workers (Jacoby, 2004). Daniels has said that agriculturalists, especially in California, were addicted to Mexican labor. As such, when the Bracero Program ended, migrant workers entered the country illegally multiple times with the result of exacerbating the illegal alien crisis that still exists (Daniels, 2004).

Government response to the problem of Mexican immigration can at best be described as turning a blind eye. Through 2006, undocumented immigrants crossing the border from Mexico were unofficially tolerated, providing they successfully got past Border Patrol (Hanson, 2009). IRCA was amended to include a section restricting warrantless entries into outdoor agricultural operations. The owner of a farm could refuse entry to an INS agent who did not have a warrant to question workers, even if there was reason to believe the farm was staffed with undocumented workers.

Sweatshop workers were more prone to enforcement of the IRCA provisions, as were small businesses whose owners had no political clout. It became apparent that once agricultural workers got away from the border, their risk of arrest was minimal (Hanson, 2009). However, the climate of tolerance or tacit approval characteristic from the 1990’s to 2005 changed by 2006. In 2006, stricter enforcement by Department of Homeland Security led to a number of arrests of those not authorized to be in the country. The actions and the inactions by the government call for rethinking immigration policy, based on our economic needs and patterns of labor movement, especially in the low/un skilled sector.

Undocumented Worker and our Economy A persuasive argument to convince Americans that a pathway to the legalization of immigrants who are here illegally must delineate the positive impact undocumented workers have on the economy. Especially with regard to the mortgage crisis, the

S.B 1070 as a National Lightning Rod

downturn in the economy of recent years and the national unemployment rate, citizens need to be assured that illegal immigrants are not filling jobs Americans should hold or unduly draining state and federal governments of resources. There are studies and statistics to support the pros and cons of undocumented workers’ impact on the economy. A concise way to summarize the economic benefit of undocumented workers is that they provide employers with the types of workers they want, when and where they want them (Hanson, 2007).

Hanson particularly notes that immigration policies have favored labor supply in scarce sectors of the economy. He identifies this as those whose skills are in short supply and whose contributions to the tax rolls, minus the cost of the public services they receive, are as large as possible. This includes both the high skilled worker as well as the low/unskilled worker in agriculture, construction, food preparation, cleaning services and low-end factory jobs (Hanson, 2009). The presence of low/unskilled immigrant labor, as Hanson argues, is critical to the economy, as increase in high school graduation rate, has led to low supply of low/unskilled labor in the economy (Hanson, 2009).

However, immigration law does not support the import of the low/unskilled labor; few illegal immigrants, particularly those from Mexico, qualify for temporary work visas or employment-based green cards. The only option for employers and those seeking work is illegal immigration, whereby large numbers of low-skilled workers are relocated from a low-productivity to a high-productivity environment (Hanson, 2009).

Not only, do illegal immigrants fill in a vital need in our economic system, but they also support our tax structure. The Arizona Republic, in its evaluation of SB 1070’s impact on the economy concludes that legal status to all undocumented immigrants in Arizona itself would yield an increase in tax revenue by $1.68 billion. This increase is based on the belief that the immigrants would likely move up to higher paying jobs. In turn, they would spend more and pay more in taxes (Gonzalez, 2014). Undocumented immigrants pay an average of $1,800 per household, per year more to Social Security and Medicare then they use in services. Overall estimates of how much they contribute range from $7 to $15 billion. It is also estimated that undocumented workers contribute more than $1.5 billion to Medicare. Some economists believe this influx will help keep Social Security and Medicare afloat (Becerra etal, 2013).

Additionally, Spending by employed undocumented immigrants sustains other jobs. Legalization would add 261,000 jobs, increasing total employment in Arizona by 7.7%. Labor income would rise by $5.6 billion. Hanson noted that immigration creates extra income for the United States economy even when it pushes down earnings for some workers, estimated between 9.4 to 7.4% for natives without a high school diploma.

The Partnership for a New American Economy, in its Regional Economic Model for Arizona, estimated that undocumented immigrants who enroll in a legal path to citizenship would add more than 14,000 jobs and more than $1.18 billion to the economy by 2020 (2012). Those opposed to legal rights to undocumented workers believe the municipal services they use drain state budgets. Judith Gans, of the Udall Center for Studies in Public Policy, found that in 2004, Arizona collected $2.4 billion in revenues from immigrant workers, $1.5 billion from those without documentation to be in the country, whereas Naturalized citizens contributed $860 million to state coffers (Gans, 2007). Gans determined that the cost of education, health care and law enforcement was $1.4 billion. A cost benefit analysis of the amount spent on services versus revenue earned shows that illegal immigrants were a net gain to the economy of

45

Ramapo Journal of Law and Society

Arizona; as the fiscal impact to Arizona’s state budget was a positive $940 million (Gans, 2007). The Arizona Republic notes that the state’s economy would shrink by $49 billion if mass deportation removed all of the undocumented workers and their families (Gonzalez, 2014). This is equivalent to about a fifth of the state’s economy. Also, 581,000 jobs held by immigrants and native-born workers would be lost. This would result in a 17.2% decrease in employment and the state tax revenue would drop by 10.1% (Gonzalez, 2014). Other estimates peg the loss to Arizona’s economy at $11.7 billion in gross state product and more than 140,000 jobs (Becerra etal, 2012).

At the federal level, the Congressional Budget Office (CBO) indicated in their 2007 report that undocumented immigrants contributed more in taxes than they took in services. The CBO conceded there are costs to state and local governments for providing law enforcement, education and health care services to this group. Costs are also incurred in border security, programs to prevent, detain and deport undocumented workers, and the costs associated with crimes such as human smuggling and trafficking.

The Heritage Foundation reported that the cost of incarcerating undocumented aliens was a huge drain on taxpayers. The report cited California, Texas, Arizona, Florida, New York and Illinois absorbing the greatest financial burden (Becerra etal, 2012). However, these costs, as per CBO, represent a small percentage of state and local budgets, as little as 5% (Becerra etal, 2012).

Stephen Goss, chief actuary for the Social Security Administration claims that undocumented workers contribute about $15 billion a year to Social Security through payroll taxes. They take out $1 billion; very few are eligible to receive benefits. Goss estimated that undocumented workers have contributed up to $300 billion, nearly 10%, of the $2.7 trillion Social Security Trust Fund (Davidson, 2013). Hanson, in a report issued by the Council on Foreign Relations, concluded that illegal immigration responds to market forces in ways that legal immigration does not (Hanson, 2007). Illegal migrant agricultural workers tend to cross the border in larger numbers when the U.S.’s economy is booming, relative to their native Mexico and Central American countries.

They congregate in regions where jobs are plentiful. Conversely, allowing them to enter legally under arbitrary selection processes and bureaucratic red tape may not keep pace with labor and market conditions (Hanson, 2007). One thread of thought posited is that as baby boomers age and retire, the post-boom generation’s onus to finance retirement will be alleviated by undocumented immigrants.

While cost benefit analysis demonstrates that illegal immigrants positively contribute to our economy, there are many challenges as well. It has been observed that the presence of illegal immigrant workers reduces the commitment of employers to traditional United States labor market institutions (Hanson, 2007). It creates a population of workers with limited upward mobility and an uncertain place in society (Hanson, 2007). George Borjas, in his June 2003 essay in the Quarterly Journal of Economics, estimated that from 1980 to 2000, immigration contributed to a 3% decrease in average U.S. wages (Borjas, 2003). He attributed the drop to the impact of both legal and illegal immigrant workers. During the same time period, the wages of native workers without a high school diploma fell by 9% due to immigration. Borjas notes that 20 million American low-skilled workers saw their average hourly wage drop 30% from 1979 to 1995, partly due to decrease in immigration. (Borjas, 2003) Additionally, the share of immigrants, legal and not, with less than 12 years of education has steadily increased since the 1970s. In the 70’s, 15% of immigrants had less

S.B 1070 as a National Lightning Rod

than a high school diploma. This number increased to 40% in California and 50% in Texas in the 1990’s (Graham Jr., 2004). In 2011, an estimated 278,460 illegal immigrants made up about 9.3% of Arizona’s total workforce. In January 2012, unemployment in that state was 8.7%, with 262,587 able workers unemployed.

Opponents of legalizing undocumented workers argue that, natives would be gainfully employed were it not for the 9.3 % of illegal immigrants taking “their” jobs (Federation for American Immigration Reform, 2004).

A race to the bottom pits low-skilled native workers against illegal immigrant labor. Without a sound immigration policy that would allow for legalizing those who are undocumented with protections for native workers, the problem cannot be addressed.

Immigration reform therefore requires a consensus-based approach that addresses the complexity of the problem, than a piecemeal approach that caters to interest of one group over the other.

The Economic Cost of SB 1070 to Arizona In the context of the immigration debate stirred by SB 1070, it is pertinent that the impact of this law be assessed not from the perspective of state versus federal rights but from an economic perspective as well. Would it be effective for Arizona to implement this bill and if so, would the state be spending more or reduce expenses.

The Federation for American Immigration Reform noted in a 2012 fact sheet that the total cost in Arizona for education, medical care and incarceration provided to illegal immigrants was $2.6 billion (Federation for American Immigration Reform, 2004).

However, the Immigration Policy Center does not believe S.B. 1070 would withstand a cost-benefit analysis. The Center’s position is that full implementation of the bill would bankrupt Arizona by using state funds to apprehend minor immigration offenders while leaving native-born violent felons unpunished. Regardless of whether this is a fact or scare tactic, charging 400,000 undocumented immigrants in Arizona with crimes, the costs associated with incarceration and the resulting lawsuits would deplete the coffers (Stock, 2010).

Has S.B. 1070 and other anti immigration legislations wreaked havoc on Arizona’s economy? Policy analysis by the Cato Institute, specifically through the study of E-verify, the federal government’s electronic employment eligibility verification system, deems this to be an expensive measure (Miller and Moore, 1998). The policy report holds that these legislations discourage investment and increases unemployment.

The average cost to run a check on a potential employee is $147. Financial burdens on hiring companies increased when they complied with the system due to additional human resource personnel and legal services (Miller and Moore, 1998).

It is believed that Arizona’s use of E-verify resulted in a 14.3% decline in new business in the third quarter of 2007. In contrast, business in two other states more heavily populated by illegal immigrants, California and New Mexico, increased during the same time period. Those two states did not have to comply with a legislative mandate to verify the legal status of potential employees (Nowrasteh, 2012). The rationale for using E-verify is to weed out undocumented workers, and make more jobs available to native workers. However, in Arizona crop production employment dropped 15.6% in the first four years after E-verify became the law. Native workers did not fill the

47

Ramapo Journal of Law and Society

employment gap. Conversely, in California and New Mexico, crop production employment increased during the same period (Nowrasteh, 2012).

In Arizona, to bypass E-verify, business owners hired workers off the books without paying income or payroll taxes (Becerra etal, 2012). In addition to the economic impact of E-verify, of concern is that its purpose is thwarted by counterfeit documents illegal workers submit. Cato’s policy analysis report suggests that after E-verify was enacted, the number of illegal immigrants apprehended at the Mexican border rose steadily from 1989 through 1993. Ten years after the employer sanctions were established, 1 million illegal immigrants were apprehended (Miller and Moore, 1998).

This shows that E-verify simply does not work. Its use has led to the arrests and detentions of a disproportionate number of employees, rather than the employers who continue to attract illegal immigrants to the country (Schmall, 2011).

In the draft of SB 1070 Arizona’s Senate may have bristled at the boost to Mexico’s economy when undocumented workers are employed in the United States.

Immigrants send money home, which seems to occur more often shortly after arrival in this country. Money flowing from the United States to Mexico heftily increased from $3.5 billion in 1996 to $23 billion in 2006. The outflow of US dollar to Mexico, also boosted profitability of US banks, especially those that solicit business from Mexico (Schmall, 2011).

Research has concluded that the higher-than-Mexico wages that attract undocumented workers may weaken as minimum wages increase in the United States.

The bump up may make some of the menial jobs more palatable to native workers and increase the supply of low-skilled U.S. residents ( Del Olmo, 1998). This may decrease the flow of illegal immigrants to the US. While this flies in the face of increased high school graduation rates, resulting in fewer workers for low-waged jobs, it is an interesting aside at a time that several states, including New Jersey, have increased their minimum wage. Further, in his 2014 State of the Union address, President Barack Obama called for a federal $10.10 minimum wage, a proposal that has already received opposition (2014) Another unintended consequence is that the number of middle-income households in the country decreased by more than 13.6 million. This change is attributed to the rapid rise in both the legal and illegal immigrant population evidenced by data from the 1990 Census. The 2000 Census data shows that while the number of middle-income households dropped, the number of high-income households increased, as did the number of low-income households, by 14% (Federation for American Immigration Reform, 2004). Between 1990 and 2000, the share of low-income households rose in states with the largest immigrant populations, by an estimated 5.3 million. More than half of this increase occurred in seven states, Arizona being one among them. The seven states also accounted for more than 60% of the 11.3 million increase in immigrant residents over the course of the decade. This social change is aligned with the rise of both legal and illegal immigration (Federation for American Immigration Reform, 2004).

An increase in Arizona’s crime rate is the result of a host of offenses that include smuggling illegal immigrants across the border and felonies such as murder, extortion and kidnapping (Jacoby, 2004). The Public Policy Institute of California estimated that nine of ten illegal migrants use a coyote, a paid smuggler, to get across the border. They pay as much as $2,000 per person to the smuggler. As a business, human smuggling has

S.B 1070 as a National Lightning Rod

become lucrative, which has resulted in the practice being more organized and entailing increased criminal gang involvement. As a result, crime has soared in Phoenix. Added to document fraud, which had been a staple criminal activity, are murder, money laundering (to the tune of $160 million in a six-month period in 2003), kidnapping and extortion. Smuggling cases have increased by 50% since 1998. In addition, the Department of Homeland Security has apprehended a large cache of assault rifles and automatic handguns, the tools of the smuggling trade (Jacoby, 2004). About 17% of Arizona’s prison population in 2012 was comprised of illegal aliens. In Maricopa County alone, 22% of felons are illegally in the United States. Further, criminal gangs engaged in drug trafficking have dug smuggling tunnels, 51 one of which were discovered between Arizona and Mexico during the years 2006 to 2010 (Federation for American Immigration Reform, 2004).

Illegal immigrants do not drive up health care costs through traditional means such as employer-provided health insurance plans or government programs for which they are not eligible. However, they do impact the bottom line of hospitals.

Undocumented immigrants underutilize health care compared to the general population, but often use emergency rooms because they are mandated to provide care regardless of immigration status or ability to pay. An estimated cost to provide undocumented immigrants with healthcare is between $6 and $10 billion a year, based on statistics compiled in 2004 and 2006. Though a large amount, the total represents about 1.5% of U.S. healthcare cost (Becerra etal, 2012). Educating the children of undocumented immigrants is estimated at $17 billion, with California, Texas, New York, Florida, Illinois and New Jersey bearing the brunt of the burden. Softening the blow is that this amount represents about 3.3% of the total spent on K-12 education in this country each year (Becerra etal, 2012).

Immigration Reform and a Path to Legalization The history of immigration policies and reform in the United States represent knee jerk reactions and band-aid to momentary labor needs. Immigration policies, particularly as they relate to undocumented workers, are not economically viable for federal, state or local governments. As the current administration revisits immigration reform, it is paramount that it does so with an eye toward introducing a comprehensive immigration reform bill that is substantial enough to not have to be revised in the near future.

There are parameters that can be put into place to make immigration laws work from a labor market perspective. One of the main reasons there is a sizeable undocumented immigrant population in the United States is that the immigration laws are out of sync with the nation’s demand for labor (Johnson, 2009). As a start, policymakers must recognize that jobs and the labor market drive the migratory movement of undocumented workers across borders. The refusal to provide a legal means for the migration of workers creates an incentive for undocumented migration that enforcement policies have failed to deter.

In Unguarded Gates: A History of America’s Immigration Crisis, author Otis L. Graham Jr. cited economists who opined, “Illegal immigration from Mexico and elsewhere was a natural and unstoppable part of the inevitable economic integration of the western hemisphere. The United States was schizophrenic in attempting to promote that integration through the North American Free Trade Agreement while preventing it

49

Ramapo Journal of Law and Society

in terms of labor markets” (Graham Jr., 2004, p. 106). This opinion, expressed in 2004, underscores two points: a sound immigration reform policy must be based on the economic needs of the United States and attempts at deportation are futile.

The concept of immigration reform is not a new one. From 1943 through 1960 the country’s immigration policy has not changed much. In the 1960 presidential election the Democratic platform jabbed at the system in place as “a policy of deliberate discrimination.” Republications, for their part, deemed that immigration had been a factor in American growth and that it “had been reduced to the point that it does not provide the stimulus to growth”(Daniels, 2004, p. 139). These views, of course, applied to legal immigration. Yet, the policies that emerged from that period included amnesty for undocumented aliens residing in the country, an idea that is currently bandied about (Daniels, 2004).

In recent history, Presidents Barack Obama and George W. Bush have both called for an overhaul of the immigration system. Bush, in his second term, focused on enforcement and a temporary worker program. Obama, however, seems intent on providing a path to legal status for undocumented workers (Hanson, 2009). As proposed immigration reform policies unfold, there is sure to be a delicate dance, or perhaps stomping, between Democrats and Republicans to decide the fate of the 12 million illegal immigrants in the country. Reform’s imperativeness is as fluid as the daily ebb and flow of illegal immigrants crossing the border. It doesn’t matter whether one is for or against, pro-legalization or pro-deportation. Illegal immigrants have been integrated into society and are here to stay.

From an economic viewpoint, immigration reform must focus on the question of whether the cost of halting illegal immigration altogether would have a significant impact in comparison to the benefits. Sending illegal immigrants back to their native countries is not a viable option. From simply an economic perspective, doing that would reduce the country’s labor force by 5% and the low-skilled workers, those who haven’t completed high school, by 10% or more (Hanson, 2009). Another reason deportation is not viable is because formal proceedings are rare. It is a slow, expensive process. In the 1980s, for example, incarceration in a federal jail for those awaiting deportation ran about $35,000 per person, per year. Rather than take on this huge expense, undocumented workers who are apprehended further inland from the border are asked to sign a voluntary departure form. INS usually transports them to the border at government expense. Those who voluntarily depart are eligible to reenter the country legally (Daniels, 2004).

Many of these “volunteers” are migrant agricultural workers returning home after working in this country to harvest crops. During the next harvest season, the cycle begins again. This pattern has proven beneficial for business. The crops were picked, cheap labor kept prices lower for consumers, the workers earned money and the INS published statistics to show how many illegal workers were apprehended (Daniels, 2004). Hanson, noted that in 2005 illegal immigrants accounted for 24% of agricultural workers, 17% in cleaning and maintenance, 14% in construction and 12% in food preparation. Based on the percentage of undocumented workers that fill these jobs, he concluded, “losing this labor would likely increase prices for many types of non-traded goods and services, increase wages for low-skilled resident labor, decrease incomes of employers that hire these workers and increase the incomes of taxpayers that pay for the public services these individuals use (Hanson, 2007).

S.B 1070 as a National Lightning Rod

Legislators on both sides of the aisle agree that securing the border with Mexico is of paramount importance. Yet Hanson noted that the expenditure undertaken to beef up border enforcement would greatly exceed the income gained from eliminating the money drained from the system in the form of government services to undocumented workers. (Hanson, 2007). Employers do not generally support immigration reform because they have received sufficient benefits from the current system of illegal immigration. Hanson has written that by “tacitly permitting illegal employment (at least through 2006, when the Department of Homeland Security tightened interior enforcement) the United States government left its regulation to the market, which means that inflows of unauthorized labor responded to the demands of United States businesses, helping to raise productivity in the process” (Hanson, 2009, p. 4).

A report for the Council on Foreign Relations concluded that stemming illegal immigration would more than likely result in a drain on the United States’ economy.

Discussions about immigration reform that revolve around guest worker programs do not account for the economic incentives that fuel illegal immigration as a benefit to both the undocumented workers and employers who desire low-cost labor. Again citing Hanson, “unless policymakers design a system of legal immigration that reflects the economic advantages of illegal labor, such programs will not significantly reduce illegal immigration” (Hanson, 2007. p. 24 ). Granting amnesty or citizenship to all undocumented immigrants may not be in the best economic interests of the country.

Guest worker programs need to allow for flexibility for the workers, especially those who are migrant, agricultural laborers or who are in construction. One consideration in stemming illegal immigration is to increase the quotas of those allowed to enter. It is interesting to note that as a share of the population, immigrants, legal and illegal, are far below historical levels for the United States (Hanson, 2007).

Increasing the number of guest, temporary workers through a visa program provides needed labor in an upturned market, with the agreement that these workers return home when their work stint is completed. These workers, however, require flexibility to pursue other opportunities while in this country, rather than be temporarily available to one employer. Essentially, a sanctioned visa program would have to mirror the benefits to employers that undocumented workers provide (Hanson, 2007).

Another reform option is to increase the number of H-2A visas available for seasonal agricultural workers that permit work for a United States employer for up to one year. There isn’t a cap on the number of these visas that can be issued, unlike the 66,000 H-2B visas for seasonal, nonagricultural workers. However, the H-2A has strict rules that limit their use. Even though there are 8.3 million unauthorized immigrants working in the country, it is doubtful that the roughly 150,000 temporary low-skilled visa holders who are in the country at any given time are of consequence for the needs of domestic, low-skilled employment (Hanson, 2009).

Immigration reform based on economic ramifications is essential. While lowskilled native and foreign workers are likely to see a drop in their wages, the overall effect on the economy is a positive one. Reform activists are bound to be dismayed at a system in which employers enjoy higher incomes because their labor costs are lower and their businesses are more productive. The use of illegal and legal immigrants and lowskilled native workers redistributes income and creates a net gain in national income because employers are able to use their land, capital and technology more productively.

51

Ramapo Journal of Law and Society

Undocumented workers also boost Mexico’s economy by sending money home; in the process banks in both countries benefit from illegal immigrants.

Any modified policy needs to allow low-skilled immigration to happen in a way that generates the maximum productivity gains to the economy. A system can be envisioned in which there is a limit on the fiscal cost of immigration and enforcement spending is contained. Existing inflows of unauthorized immigrants would be converted into inflows of legal immigrants. This author stops short of granting citizenship to illegal immigrants, but supports a path to a legalized status. Citizenship and pride in country, although a somewhat antiquated concept, are the foundations on which this country was built. Granting citizenship to those who are here illegally would be a disservice to the legions of Americans who took a legalized path to become citizens.

The current selection process, and one addressed by the president in his 2014 State of the Union message, is weighted toward highly skilled immigrants, particularly engineers. Following the thought process of Miller and Moore, authors of the Cato Policy Analysis, increasing visa quotas for the lower-skilled illegal workers could be advantageous to the United States because the selection can be based on motivation and work ethic. The workers tend to cross the border when they are in their prime working years, and because of their youth, they generally make a substantial net contribution to federal programs, particularly Social Security (Miller and Moore, 1998).

Current immigration law offers few opportunities for low- and moderately-skilled workers to come to the United States, temporarily or permanently. As long as the demand for cheap labor continues, so will the influx of undocumented workers. The problem with the quota system in place, based on the number of visas issued, is that the system is not realistically calibrated for the need for lower-skilled workers (Johnson, 2009).

Formulated in a similar way, another option would be a return to the Bracero Program or another type of guest worker program. It has been found that many migrant workers are “repeat customers” who do not wish to remain in the United States due to family ties in their native country. They work, earn and return home. In the 1950s, when the Bracero Program was in effect, illegal immigration ebbed. A legalized guest worker program as part of immigration reform would bring this group of workers more in line with the labor needs of American employers. At risk though, is that despite labor protection laws, workers may be exploited in violation of the law, as was the case during the Bracero Program. Another potential risk of a legalized guest worker program is that there is a possibility that the workers will not return home. As they form families, secure jobs and establish community ties, returning to their home countries will become less attractive and less practical. However, establishing a guest worker program under the auspices of both countries’ governments can reduce these risks. This will provide accountability on both sides of the border for low, but fair wages and a safe work environment. It would also allow for a border patrol system to weed out coyotes Reform of immigration laws is essential both to the management of flow of immigrants but also our economic productivity. What is important is to shift from the polemics of the divisive debate in favor of or against immigration reform, to situate reform measures from the perspective of long-term economic interests. Further, the president and the legislature must also recognize that a reform of immigration policy, practices and law cannot be undertaken without regard to family unification, protection of refugees, national security and public safety.

S.B 1070 as a National Lightning Rod

References: Arizona, et al, Petitioners v. United States. No. 11-182. (2012). http://www.law.cornell.edu/supct/pdf/11-182.pdf Borjas, George. (2003). “The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market”. Quarterly Journal of Economics.

Web. http://www.nber.org/papers/w9755.pdf Becerra, David; Androff, David; Ayon, Cecilia; Castillo, Jason. (2012). “Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S.” Journal of Sociology & Social Welfare. Pp. 111-135. http://www.wmich.edu/hhs/newsletters_journals/jssw_institutional/institutional_sub scribers/39.4.Becerra.pdf Camarota, Steven A. and Vaughan, Jessica M. (2009) “Immigration and Crime: Assessing a Conflicted Issue.” Center for Immigration Studies. Web. http://heartland.org/sites/default/files/crime.pdf Chomsky, Aviva. (2014). Undocumented: How Immigration Became Illegal. Boston: Beacon Press.

Daniels, Roger. (2004). Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882. New York: Hill and Wang.

Davidson, Adam. (2013) “Do Illegal Immigrants Actually Hurt the U.S. Economy?” The New York Times Magazine. February 12. http://www.nytimes.com/2013/02/17/magazine/do-illegal-immigrants-actually-hurtthe-us-economy.html?pagewanted=all&_r=0 De Canas v. Bica. 424 U.S. 351(1976).

Del Olmo, Frank. (1998). “The Extent of Illegal Immigration is Exaggerated.” Los Angeles Times. 1997. Published in Immigration: Opposing Viewpoints. California: Greenhaven Press.

Evans, G. Russell. (1998). “Illegal Immigration Harms the United States.” Conservative Review. 1994. Published in Immigration: Opposing Viewpoints. California: Greenhaven Press.

Federation for American Immigration Reform. (2004). “Immigration Leads to Income Inequality.” Gerdes, Louise I., Book Editor. Immigration. Current Controversies Series.

New York: Greenhaven Press, 2004.

53

Ramapo Journal of Law and Society

Federation for American Immigration Reform. “Immigration in Arizona: Fact Sheet.”

2012. Web. http://www.fairus.org/issue/immigration-in-arizona-fact-sheet Gans, Judith. “Immigrants in Arizona: Fiscal and Economic Impacts.” Udall Center for Studies in Public Policy. 2007. Web. http://udallcenter.arizona.edu/immigration/publications/impactofimmigrants08.pdf Gonzalez, Daniel. (2014). “Report: Migrants are Key to State.” The Arizona Republic.

December 17. Web. http://archive.azcentral.com/arizonarepublic/business/articles/2011/03/25/20110325r eport-migrants-key-arizona.html Graham Jr., Otis L. (2004). Unguarded Gates: A History of America’s Immigration Crisis. New York: Rowman & Littlefield Publishers, Inc., 2004.

Hanson, Gordon H. (2007). “The Economic Logic of Illegal Immigration.” Council on Foreign Relations. Web http://www.cfr.org/immigration/economic-logic-illegal-immigration/p12969 Hanson, Gordon H. (2009). “The Economics and Policy of Illegal Immigration in the United States.” Migration Policy Institute. Web. http://www.migrationpolicy.org/pubs/Hanson-Dec09.pdf Hines v. Davidowitz. 312 U.S. 52. (1941).

Ho, James C.,(2010) moderator. Panel discussion: “The Arizona Statute.” Regent University Law Review. 2010. Web. http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/ v23n2/04Hovol.23.2.pdf Jacoby, Tamar.(2004). “The United States Should Legalize Illegal Immigrants.” Gerdes, Louise I., Book Editor. Immigration. Current Controversies Series. New York: Greenhaven Press.

Johnson, Kevin R.(2009). Immigration Reform Symposium: “Problems, Possibilities and Pragmatic Solutions: Ten Guiding Principles for Truly Comprehensive Immigration Reform: A Blueprint.” The Wayne Law Review. http://www.scribd.com/doc/91278114/55-Wayne-L-Rev-1599-Ten-Guiding-Principlesfor-Truly-Comprehensive-Immigration-Reform-a-Blueprint-Kevin-r-Johnson Litwin, Marissa B. (2011). “The Decentralization of Immigration Law: The Mischief of Section 287(g).” Seton Hall Law Review 41(1). Pp. 399-426. Web. http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1377&context=shlr

S.B 1070 as a National Lightning Rod

Miller, John J. and Moore, Stephen. (1998). “A National Identification System Would Not Reduce Immigration.” Cato Policy Analysis. 1995. Published in Immigration: Opposing Viewpoints. California: Greenhaven Press.

Nowrasteh, Alex. (2012). “Arizona-Style Immigration Laws Hurt the Economy. Forbes. http://www.forbes.com/sites/alexnowrasteh/2012/10/12/arizona-style-immigrationlaws-hurt-the-economy/2/ Obama, Barack.(2014). “State of the Union Address.” Web. http://www.whitehouse.gov/the-press-office/2014/01/28/president-barack-obamasstate-union-address Partnership for a New American Economy.(2012) “Map the Impact of Immigration Across the Nation-Arizona. Web. http://www.maptheimpact.org/state/arizona/ S.B. 1070. (2010). 49th Legislature, Arizona. http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf Schmall, Lorraine. (2011). “U.S. International Immigration Enforcement: Not a Model but an Alarum.” Wake Forest Journal of Law & Policy 1. Pp. 157-196. Web. http://lawpolicyjournal.law.wfu.edu/files/2011/06/Vol.-1-1-Article-Schmall1.pdf Simcox, David. (1997). “Measuring the Fallout: The Cost of the IRCA Amnesty After 10 Years”. Center for Immigration Studies. http://www.cis.org/IRCAAmnesty-10YearReview Stock, Margaret D. (2010). “The Unconstitutional and Inefficient Law that May Just Fix Immigration.” Regent University Law Review. Web. http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/ v23n2/07Stockvol.23.2.pdf

55

Ramapo Journal of Law and Society

Substituting Socioeconomic Status for Race in College Admissions ADAM ROSARIO* Public opinion has shown that the use of race as a factor in university admissions is controversial and generally unpopular (Gallup Poll, 2013). In recent years, states have passed constitutional amendments, statutes, and executive orders that, under the guise of anti-discrimination, are intended to bar public universities from considering race in their admissions decisions (Moses, Yun and Marin, 2009). In addition, the Supreme Court’s more recent decision in Fisher v. University of Texas-Austin 570 U.S. _ (2013) highlights that the Supreme Court is becoming more hostile and suspicious of race conscious admissions.† These trends are causing public universities to rethink how to create a racially diverse student body, and many have turned to using socioeconomic status to provide that diversity. Although the experiences have been mixed, socioeconomic status may ultimately be the most effective means of creating a racially diverse student body.

In many ways the race-based admissions system has been operating on borrowed time. Although the Supreme Court in Grutter v. Bollinger 539 U.S. 306 (2003) adopted Justice Powell’s plurality opinion in Regents of the University of California v. Bakke 438 U.S. 265 (1978) that using race-based admissions to obtain a diverse student body is a compelling state interest, the majority opinion explicitly warned colleges that this could not remain a compelling interest indefinitely. In Grutter’s majority opinion Justice O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The most literal interpretation of that excerpt would mean that the Supreme Court would revisit the issue and may even be ready to reverse Grutter in 2028. However, in the years since the Grutter decision the makeup of the Court has changed, with Justices O’Connor, Souter, Stephens and Chief Justice Rehnquist’s seats now occupied by Justices Alito, Sotomayor, Kagan, and Chief Justice Roberts, respectively. More importantly, Fisher underscores the significance of this change in the Court, where the majority is now hostile to the use of race in university admissions (see, for example, the majority opinion in Schuette v. BAMN (2013), Justice Scalia’s concurrence and Justice Thomas’s dissent in Fisher). Even more troubling is that there are a number of states that have taken actions to bar their public colleges and universities from using race in admissions. Taking these points into account, colleges and universities cannot assume they will be able to use race-based admissions until 2028 and must prepare for other * Adam Rosario is a senior at Rutgers University-New Brunswick majoring in History and Political

Science, and is currently a General Research Intern for the Center for Public Interest Polling at the Eagleton Institute of Politics. † The Court’s opinion in Fisher stated that the Fifth Circuit erred in not applying strict scrutiny when

reviewing UT-Austin’s race-based admissions plan. Justice Kennedy’s dissenting opinion in Grutter v.

Bollinger 539 U.S. 306 (2003) called for the adoption of the strict scrutiny standard, which he stated that the Grutter majority failed to adopt from Justice Powell’s plurality opinion in Regents of the University of California v. Bakke 438 U.S. 265 (1978). Justice Thomas and Scalia, in their concurring opinion in Fisher openly called consideration of race in admissions unconstitutional. In Schuette v. BAMN (2013), the Court approved Michigan’s constitutional amendment, enacted by ballot initiative, which banned racebased admissions policies at public universities. The Michigan constitutional amendment under review in Schuette is a verbatim copy of California Prop. 209.

Socioeconomic Status in College Admissions

means to draw a racially diverse student body. Considering socioeconomic status may not only be the best option, but may even address the original intent of affirmative action policies.

In order to understand why socioeconomic status, or class-based admissions, may be the best alternative to race-based admissions, it is best to revisit the original purpose of affirmative action. The beginnings of ‘affirmative action’ are rooted in Executive Order 10925 signed by President Kennedy in 1961, which directed federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” Similar language appears in the Civil Rights Act of 1964. Although such actions may have been passed in the hopes of improving race relations or increasing diversity in workplaces, schools, and neighborhoods, it would be a misunderstanding to purport that these policies intended to have that singular effect. The true intent was to counter broad discrimination in education, employment, and daily life, which placed minorities into an underclass that lacked the education and capital to overcome the poverty and unemployment that disproportionally affected these groups. Undoing the economic disadvantages that racial discrimination caused was far more important and realistic a goal than was undoing the past wrongs of slavery and segregation. Laws that prohibited discriminatory hiring practices meant there was a better chance for minorities to gain employment in areas they were once shut out from, even when qualified. Typically these areas paid better wages. Improving the dire economic situation that disproportionately affected racial minorities would cause a ripple effect and improve life for minorities in other ways, such as educational attainment (Brooks-Gunn and Duncan, 1997).

The advantages of using socioeconomic factors in admissions There are two arguments that support the use of socioeconomic factors to attain diversity in colleges as a substitute to using racial or ethnic distinctions. First, there is a correlation between race and socioeconomic status. In a 2007 study, the National Center for Education Statistics (NCES) concluded that Black/African American and Hispanic children are three times more likely to live in poverty than White children. The poverty rates for smaller minority groups such as Native Americans and Asians also exceed that of Whites. In contrast, many would point out that there is a larger population of White children living in poverty, and this has been largely true when comparing Whites to Blacks or Latinos, respectively.‡ However, this is no longer the case. In 2007, the number of Hispanic children living in poverty, 4.4 million, surpassed the number of White children living in poverty, 4.2 million. Between 2007 and 2010 the number of Hispanic children living in poverty rose dramatically from 4.48 million to 6.11 million. Due to the 2008 recession there was an increase in the number of children living in poverty across racial lines, however Hispanic children were disproportionately affected with a rate of increase two and half times greater than White children and three times greater than Black children (Lopez and Velasco, 2011).

‡ According to the U.S. Census Bureau there were 16.4 million children under the age of 18 living in

poverty. Of that 16.4 million, 5 million are White (Non-Hispanic), 4.8 million are Black, 6.8million are Hispanic, and half a million are Asian. Together, Blacks and Hispanics account for 11.6 million of the 16.4 million children living in poverty (U.S. Census Bureau, 2010, pp. 68-73).

57

Ramapo Journal of Law and Society

Further evidence that underscores the correlation between race and socioeconomic factors can be seen beyond measuring poverty rates. Poverty not only affects children at home, but also in terms of their education. Black and Latino students are more likely to attend high poverty, underfunded, urban schools (Brooks-Gunn and Duncan, 1997, p. 66). Although some minorities may excel within these schools they will be exposed to less rigorous programs, such as honors and Advance Placement (AP) classes, which are more accessible to students in predominantly White schools that tend to be better funded (Darling-Hammond and Post, 2000). Teachers within these schools may be less prepared to teach such curricula (Darling-Hammond and Post, 2000), and also have lowered expectations for their students (Roberts, 2011). Not only is it the case that high poverty neighborhoods are largely Black and Latino, but these neighborhoods often have less access to social services than predominantly White neighborhoods (The National Poverty Center, 2009). In turn, these substandard educational factors have disadvantaged racial minorities economically.

The second argument that supports the use of socioeconomic factors to ensure diversity within colleges and universities is the changing demographics of the United States. A point of critique about using socioeconomic factors is that even though poverty and joblessness affect Blacks and Latinos at a higher rate, when viewed in raw numbers, Whites affected by poverty and unemployment outnumber both groups. Although this may be true in terms of measuring the general population, college admissions deal predominantly with a specific age group: the average college freshman approximately eighteen years of age. Therefore, the college admissions system is more focused on children living in poverty, rather than focusing on poverty on an aggregate level. As mentioned above, since 2007 Hispanic children living in poverty outnumber White children living in poverty, with Black children following (Lopez and Velasco, 2011).

Therefore the critique that Whites make up too significant a portion of the poor is a misrepresentation in regards to how effective socioeconomic factors can be when creating a racially diverse student body.

However, putting that argument aside, by 2043 the United States will become a majority-minority nation (Frey, 2009). Simply put, this means that Whites will no longer account for over fifty percent of the population, but they will still make up a plurality of the U.S. population. This dramatic change will occur more quickly in specific states. For instance, in 2013 there were fourteen states in which the majority of children five and younger were no longer White children (Frey, 2009). The Brookings Institute estimates that by 2018 those eighteen and younger, the most important age group to college admissions, will no longer be majority White. Even more striking is that by 2060, Hispanics, not Whites, will constitute a plurality in this age group. The general trend is that, as a percentage, ethnic groups, excluding Blacks/ African Americans and Whites, will increase, while Blacks and African Americans will remain steady around thirteen percent of the total population (Frey, 2009). A trend leading towards a generally more diverse population will mean that there will be a more ethnically diverse pool of students from which colleges and universities can draw their freshman classes.

As attaining racial diversity becomes easier, this may be an opportunity for colleges to use socioeconomic factors not only to boost minority enrollment, but also to increase the enrollment of those affected most by poverty. “Seventy-four percent of the students at the top 146 highly selective institutions come from the top quarter of the socioeconomic status scale, just three percent came from the bottom socioeconomic

Socioeconomic Status in College Admissions

status quartile, and roughly 10 percent came from the bottom half of the socioeconomic status scale” (Carnevale and Rose, 2003, p. 106). A college education can lift impoverished children out of their current circumstances, break the generational effect of poverty, and provide a better foundation for future generations. In many ways children of low socioeconomic status face more disadvantages as a group than do any particular racial or ethnic groups (Carnevale and Rose, 2003). When looking at SAT scores, on average black students performed 59 points below White students. However, the most economically disadvantaged student performed on average 399 points below the most economically advantaged student (Kahlenberg, 2012). Overall, a new affirmative action for socioeconomically disadvantaged children can serve as a new mission for colleges along with racial diversity (Carnevale and Strohl, 2010).

Two case studies on the use of socioeconomic factors in college admissions There are two case studies that may shed light on how effective using socioeconomic factors in college and university admissions can be. In 1996 California voted on and passed Proposition 209, which stated that: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” This amendment to the California State Constitution effectively barred public universities from using race as a factor in their admissions processes. The result was a precipitous drop in the percentage of minorities enrolled. In 1995, the entering freshman class at University of CaliforniaBerkeley was about sixteen percent Hispanic and seven percent Black, but in 1998, after Proposition 209 went into effect, the entering freshman class was seven percent Hispanic and three percent Black (Kahlenberg, 2012, p. 36). Similar results were seen at the University of California- Los Angeles (Kahlenberg, 2012, p. 38). In response, the University of California system implemented a number of new policies in the hopes of countering the loss of diversity at their colleges and universities. Following the adoption of Proposition 209, the UC system began to use socioeconomic factors in place of race, and subsequently voted to end legacy benefits in admissions. In 2001, a top percent plan was introduced in which the top four percent of students in California high schools were guaranteed admission into the UC system, but not necessarily their school of choice.

And lastly, in 2002 the UC system implemented a “comprehensive review” in which more socioeconomic factors were introduced, such as: family members with disabilities, where students live, where they attended school, and what opportunities were available at the school (Kahlenberg, 2012, p. 33-35).

The result was that by 2010 the percentage of Hispanic freshmen entering UCBerkeley and UCLA increased, yet remained below the pre-Proposition 209 rates (pre1997). The percentage of Black freshmen at UC-Berkeley and UCLA however, continued to fall steadily since 1997. A reason for the slight rise in Hispanic enrollment may also be attributed to an increase in the proportion of high school diplomas awarded to Hispanic children in California high schools, which increased from 25 percent in 1995 to 40 percent in 2010 (Kahlenberg, 2012, p. 38). Conversely, the percentage of high school diplomas awarded to black children in California remained relatively stagnant.

Interestingly, the implementation of a top percent plan in California did not lead to greater racial diversity in the state’s public universities, as did the implementation of top percent plans in Texas and Florida. In 1996, before Grutter, the Court of Appeals for

59

Ramapo Journal of Law and Society

the Fifth Circuit issued a decision in the closely watched case Hopwood v. Texas (78 F.3d 932) (Horn and Flores, 2003). In Hopwood, the Fifth Circuit struck down the racebased admissions policies used by the University of Texas-Austin School of Law, finding that the policies violated the Equal Protection Clause of the Fourteenth Amendment. In response, all colleges and universities in Texas abandoned race-based admissions (Kahlenberg, 2012). In 1997, the year after Hopwood, the minority enrollment in the entering freshman class at the University of Texas-Austin, the flagship public university in Texas, was about two percent Black/African American and twelve percent Hispanic/Latino. That same year the Texas state legislature passed House Bill 588 enacting the Top Ten Percent plan. Along with using socioeconomic factors, UT- Austin was able to increase underrepresented minority enrollment in its entering freshman classes from two percent Black and thirteen percent Hispanic in 1997 to five percent Black and nineteen percent Hispanic in 2007 (Kahlenberg, 2012, p. 29).

In 2008, Colorado was considering a ballot measure with the exact same wording as California Proposition 209 (Farley, Gaertner, and Moses, 2013). Although the ballot initiative failed by a slight margin, the University of Colorado- Boulder recognized that it needed to develop an alternative plan to race conscious admissions. The university commissioned a study known as the Gaertner study, named after Matthew N. Gaertner, a doctoral student at CU- Boulder’s Graduate School of Education, which showed an admissions scheme that substituted socioeconomic factors for race conscious admissions would increase minority representation at University of Colorado- Boulder.

The study proposed two factors to replace race, an “overachievement index” and a “disadvantaged index” (Gaertner, 2011). The “disadvantaged index” measures the likelihood that a particular student will attend a four-year college, with respect to the negative effects of that student’s low socioeconomic status and lack of opportunity. The “overachievement index” measures the student’s performance (e.g. courses, GPA, standardized test scores, etc.) compared to how the student is expected to perform with respect to that student’s socioeconomic status (Gaertner and Hart, 2012).

Using these indexes, ten admissions officers reviewed 478 applications already reviewed under the race conscious admissions standards. No information was given that showed the applicants race. The results showed that of the 478 applications reviewed, more students of lower socioeconomic status were admitted, and the admissions rate for underrepresented minorities (Black, Hispanics, and Native Americans) increased from 56 percent to 65 percent. In total, 365 applicants were accepted under the class based policy compared to the 352 applicants admitted under the race-based policy (Gaertner, 2011, p. 23). Furthermore, the mean SAT, ACT, and GPA scores of those admitted under the class based admissions policies did not greatly deviate, as many assumed would be the outcome, from the mean of those admitted under the race-based plan (Gaertner and Hart, 2012, p. 394).

Possible critiques and the way forward There are many criticisms against using socioeconomic status as a substitute for race or ethnicity. The larger criticisms question whether or not the policy can maintain diversity. The majority of this paper acts to counter that argument, and tries to show that socioeconomic status is in fact a feasible alternative to race-based college admission policies. However, there are more subtle arguments against socioeconomic status that should be highlighted.

Socioeconomic Status in College Admissions

In 2011, a group of small liberal arts colleges filled a joint amicus brief in Fisher.

By and large the joint amicus brief argued in favor of University of Texas- Austin, but took the time to argue in favor of race-based admission policies by dismissing socioeconomic status as a viable alternative. The brief contained the results of a study commissioned by Williams College which concluded that a socioeconomic based admissions scheme would cut its pool of minority applicants in half, create a pool of minority applicants that would have an academic record “considerably lower than it now can select from”, “enlarge the existing socio-economic imbalance since a larger majority of [minority] applicants would be poor,” and lead to increased stereotyping on campus (Brief for Amherst College et. al. as Amici Curiae).

In many ways Williams’ argument is that colleges should, and must, be able to recruit and admit middle and upper class minority students as actively as those minorities of low socioeconomic status. Keep in mind that upper and middleclass minorities are not likely to suffer from the same disadvantages that affect minorities of low socioeconomic status. Upper class and middle class minority students will attend better schools that are well-funded, live in better neighborhoods, and have access to more opportunities because of this. On some level these smaller private liberal arts colleges, which are more expensive than large public universities, may be wary of admitting poorer students because of the debt load that these students will carry after graduation. Information about the average debt load a student carries when graduating is a figure prospective students and college rankings look at carefully. Furthermore, admitting students of low socioeconomic status may strain these smaller liberal arts colleges, which do not have as much financial aid to disperse as large public universities.

Such strains on financial aid departments may make it difficult to diversify the student body in other ways, such as offering athletic scholarships.

Lastly, using socioeconomic status in college admissions raises the question of how the Supreme Court will look at the use of these new admission policies. One of the main benefits of using socioeconomic status in college admissions is that defending distinctions based on class is much easier than those that involve race. There are a few cases that must be highlighted to better understand the Supreme Court’s equal protection jurisprudence in regards to distinctions based on income, wealth, or socioeconomic status. The first case is San Antonio Independent School District v.

Rodriquez 411 U.S. 1 (1973). In this case, the Court was reviewing a tax scheme that Texas used to fund its public school system, wherein half was paid by the state and the remaining half by local property taxes. Families in lower income areas sued and claimed that the tax scheme discriminated against students living in poorer school districts, and that their children were receiving a substandard education when compared to children in more affluent districts. The District Court ruled in favor of the less affluent families, reasoning that wealth was a suspect classification and therefore the Texas tax scheme had to pass the high bar of strict scrutiny, which it did not. The Supreme Court disagreed, determining that class distinctions based on wealth and income do not qualify as a suspect class. In a broader view the opinion stated that Texas was using its plenary authority of taxation, and that to rule the scheme as unconstitutional would “have the Court intrude in an area in which it has traditionally deferred to state legislatures.” Historically, for purposes of taxation the Court has recognized the states’ “broad discretion” to make classifications. The Court further reasoned that “the Equal Protection Clause does not require absolute equality or precisely equal advantages,” and

61

Ramapo Journal of Law and Society

the threshold was that the state provide poor children an adequate education, not an equal education. Since distinctions based on wealth or income are not suspect classifications and education is not a fundamental right, the Court applied the rational basis test.

In Harris v. Mcrae 448 U.S. 297 (1979), the Supreme Court determined that poverty is not a suspect class. In 1976 Congress passed a statute which included a provision, commonly referred to as the “Hyde Amendment,” which prohibited the use of federal funds from Medicaid, a government sponsored health program for the poor, to reimburse the cost of an abortion. A pregnant Medicaid recipient named Cora McRae filed suit challenging the law as discriminating against her for being poor and for invasion of privacy. In a five to four decision the Supreme Court disagreed and reasoned that “poverty, standing alone, is not a suspect classification.” In the plainest of terms the Court concisely lays out its equal protection jurisprudence on such subjects in Romer v.

Evans 517 U.S. 620 (1996), writing: “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” These cases together indicate that courts might support class distinctions in college admissions by public universities because instead of pointing out racial differences, socioeconomic status “[identifies] the characteristics of the advantaged and disadvantaged classes that may justify their disparate treatment” (City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)). This sets a lower bar of scrutiny for socioeconomic status-based admission policies to meet, and thus makes it easier to implement these policies.

Using socioeconomic factors today in place of race-based admissions may be challenging, as has been in California. However, the Gaertner study in Colorado is a promising look at the viability of such policies, and underscores the irrefutable association between underrepresented minorities and low socioeconomic status. As the demographics in the United States shift, there will be a larger pool of minority students for colleges to draw from, which means maintaining racial diversity at colleges and universities will be less challenging. Furthermore, the Supreme Court’s precedent, denying the economically disadvantaged suspect classification, will make such distinctions easier to implement, unlike distinctions of race. In all, colleges should begin preparing for the Supreme Court’s inevitable overturning of Grutter, and develop plans to insure that minorities are not left behind. Developing admissions schemes that use socioeconomic factors to attain diversity will accomplish that goal.

References: American Psychological Association. (2014). Factsheet: Ethnic and Racial Minorities & Socioeconomic Status. Retrieved from: http://www.apa.org/pi/ses/resources/publications/factsheet-erm.aspx Brief for Amherst College et. al. as Amici Curiae Supporting Respondents, Fisher v.

University of Texas, 570 US ___ (2013) (no. 11-345). Retrieved from: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/ briefs/11-345_respondentamcuamherstetal.pdf Pg 22-24

Socioeconomic Status in College Admissions

Brooks-Gunn, Jeanne and Greg J. Duncan. (1997). The Effects of Poverty on Children.

Future Child. Retrieved from: http://www.princeton.edu/futureofchildren/publications/docs/07_02_03.pdf Carnevale, Anthony P. and Jeff Strohl. (2010). Rewarding Strivers: Helping LowIncome Students Succeed in College. The Century Foundation Press. Retrieved from: http://tcf.org/assets/downloads/tcf-CarnevaleStrivers.pdf Carnevale, Anthony P. and Stephen J. Rose. (2003). Socioeconomic Status, Race/Ethnicity, and Selective College Admissions. Century Foundation Press. Retrieved from: http://tcf.ejaeworks.com/assets/downloads/tcf-carnrose.pdf Dale, Charles V. (2005). Federal Affirmative Action Law: A Brief History. Congressional Research Service. The Library of Congress. Code RS22256. Retrieved from: http://fpc.state.gov/documents/organization/53577.pdf Darling-Hammond, Linda and Laura Post. (2000). Inequality in Teaching and Schooling: Supporting high Equality Teaching and Leadership in Low-Income Schools.

The Century Foundation. Retrieved from: http://www.stanford.edu/~ldh/publications/LDH-Post-Inequality.pdf Executive Order No. 10925: Establishing The President’s Committee on Equal Employment Opportunity. Part B, Subpart A, Section 301(1). Retrieved from: http://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html Farley, Amy N., Matthew N. Gaertner, and Michele S. Moses. (2013). Democracy under Fire: Voter Confusion and Influences in Colorado's Anti-Affirmative Action Initiative.

Harvard Educational Review 83(3), pp.432-543.

Frey, William H. (2009). Census Projects New “Majority Minority” Tipping Points.

Brookings Institute. Retrieved from: http://www.brookings.edu/research/opinions/2012/12/13-census-race-projections-frey Frey, William H. (2009). Immigration and the Coming “Majority Minority.” Brookings Institute. Retrieved from: http://www.brookings.edu/blogs/upfront/posts/2013/06/19-us-majority-minority-population-census-frey Gaertner, Matthew and Hart, Melissa. (2012). Considering Class: College Access and Diversity. University of Colorado Legal Studies Research Paper No. 12-18. Retrieved from: http://ssrn.com/abstract=2137126 or http://dx.doi.org/10.2139/ssrn.2137126 Gaertner, Matthew N. and Association for Institutional Research. (2011). Assessing a New Approach to Class-Based Affirmative Action. Association For Institutional Research. Retrieved from: http://researchnetwork.pearson.com/wpcontent/uploads/GaertnerAIRCBAAPaper.pdf

63

Ramapo Journal of Law and Society

Gallup Poll. (2013, July 24). In U.S., Most Reject Considering Race in College Admissions. Retrieved from: http://www.gallup.com/poll/163655/reject-consideringrace-college-admissions.aspx Horn, Catherine L. and Flores, Stella M. (2003). Percent Plans in College Admissions: A Comparative Analysis of Three States’ Experiences. Cambridge, MA: The Civil Rights Project at Harvard University. Retrieved from: http://civilrightsproject.ucla.edu/research/college-access/admissions/percent-plansin-college-admissions-a-comparative-analysis-of-three-states2019-experiences/hornpercent-plans-2003.pdf Kahlenberg, Richard D. (2012). A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences. The Century Foundation. Retrieved from: http://tcf.org/assets/downloads/tcf_abaa.pdf Khalenberg, Richard D. (2010, September 17). Colorado’s Affirmative Action Experiment. The Chronicle of Higher Education. Retrieved from: http://chronicle.com/blogs/innovations/colorados-affirmative-actionexperiment/27024 Lopez, Mark Hugo and Gabriel Velasco. (2011, September 28). Childhood Poverty among Hispanics Sets Record, Leads Nation: The Toll of the Great Recession. Pew Research: Hispanic Trends Project. Retrieved from: http://www.pewhispanic.org/2011/09/28/childhood-poverty-among-hispanics-setsrecord-leads-nation/ Moses, Michele S., Yun, John T. and Patricia Marin. (2009). Affirmative Action’s Fate: Are 20 More Years Enough? Education Policy Analysis Archives, 17. Retrieved from: http://epaa.asu.edu/ojs/article/view/22/20 Roberts, Steven O. (2011). Reconsidering Parental Involvement: Implications for Black Parents. New York University Steihardt School. Retrieved from: http://steinhardt.nyu.edu/opus/issues/2011/fall/reconsidering The National Poverty Center (2009). The Colors of Poverty: Why Racial and Ethnic Disparities Persist. Policy Brief #16. Gerald R Ford School of Public Policy, University of Michigan. Retrieved from: http://www.npc.umich.edu/publications/policy_briefs/brief16/PolicyBrief16.pdf The National Poverty Center. Poverty in the United States Frequently Asked Questions.

Gerald R Ford School of Public Policy, University of Michigan. Retrieved from: http://www.npc.umich.edu/poverty/ U.S. Census Bureau. (2011). Income, Poverty, and Health Insurance Coverage in the United States: 2010. Retrieved from: https://www.census.gov/prod/2011pubs/p60239.pdf

Protection vs Autonomy

Protection vs. Autonomy: The Role of Reproductive Health in Gender-Specific Legislation AMANDA HAMILTON* Gender-based legislation often relies on the cited physical difference between men and women, specifically women’s reproductive capacities, as grounds for separate treatment. The separate treatment of the genders, presumed on physical differences, explicitly or implicitly discriminates against women. Historically, women’s reproductive organs positioned them as abnormal within the scientific community. Women’s body was juxtaposed against a “normal” male body, and this justified rhetoric of disability, laying the foundation for separate protectionist treatment. Drawing almost exclusively on the presumed intellectual and bodily inferiority of women, the Court in Muller v.

State of Oregon, 208 U.S. 412 (1908) cemented policy that valued women primarily for their reproductive capacities. By declaring a compelling state interest in women’s reproductive health, the Court legitimized protectionist policies that would otherwise violate the fundamental right to contract. Framed as a separate class, women were often denied autonomy in the workforce at the expense of the state’s interest in their reproduction. Thus, gender-based legislation constructed a particular vision of gender roles that conflated womanhood with motherhood and positioned the state as a rational decision-maker regarding women’s reproductive care. Muller v. Oregon provides an interesting focal point for analyzing a long continuum of discrimination embedded within gender-specific legislation. By arguing that women’s bodies are “objects of public interest” due to their reproductive organs, Muller laid the foundation for legislation that continues to value women primarily for their reproductive capacities. By legitimizing state interference in order to protect women’s reproductive organs or pregnancy, Muller legitimized public policy and social discourse that continues to focus on the protection of women’s reproductive capacities but ignores women’s overall bodily protection and often overrides their individual autonomy.

Muller v. Oregon was not debated in a vacuum; rather, its decision was cognizant of particular social narratives that proscribed and promoted particular expressions of gender. The impression that eventually became deeply embedded within Muller was an increasing emphasis on physical difference between men and women. Scientific observation fueled a particular rhetoric that used women’s reproductive organs to frame them as disabled (Baynton, 2001). Central to the discourse on female disability was explicit focus on women’s reproductive capacities that supposedly crippled their intellectual, physical, and emotional capacities. In 1873, sociologist Herbert Spencer explained that stating “men and women are mentally alike, is as untrue as they are alike bodily” (as cited in Pitts, 2012, p. 37). Medical jurist Henry Maudsley reiterated Spencer’s claim by arguing that when women pursued the same intellectual tasks as men, they “do it at a cost to their strength and health which entails life-long suffering and even incapacitates them for the adequate performance of the natural functions of their sex” (as cited in Pitts, 2012, p. 38). Thus, the scientific community held that women’s intellectual pursuit would damage their reproductive organs, legitimizing their political exclusion. * Amanda Hamilton is a graduate of Drake University.

She currently attends the University of Alabama School of Law and is interested in pursuing a career in health law.

65

Ramapo Journal of Law and Society

Relying on women’s supposed reproductive disabilities, those opposing women’s participation in the political arena via suffrage or education utilized social narratives that mandated discrimination based on disability. Juxtaposed against the male norm, women’s reproduction was constructed as a medical condition that mandated separate care (Baynton, 2001, p. 38). Justification for the denial of the same intellectual or political feats as men rested on the medical community’s argument that women’s psychological and emotional inferiority stemmed from their reproductive organs and these organs were in turn harmed by women’s attempts at equality. For example, in 1891, Dr. William Warren Potter, suggesting that women were made invalid by the “artificial cause” of education, argued “Her reproductive organs are dwarfed, deformed, weakened, and diseased by artificial causes imposed upon her during their development (Baynton, 2001, p. 38)”.

The construction of women as disabled via their “abnormal” reproductive organs provided the justification for political exclusion. It legitimized and naturalized women’s positions in the home and to motherhood. In his article “Mental Differences between Men and Women,” George Romanes, a colleague of Charles Darwin, concluded “Women’s physical and mental differences precluded them from intellectual rigor and required their confinement to specific domestic and reproductive roles” (cited in Pitts, 2012, p. 41). By arguing that women’s natural role was in the home nurturing children, the medical community proscribed any activity that might threaten women’s ability to properly perform those functions. According to anti-suffragist Grace Duffield Goodwin, “In the carrying out of political plans…a woman will be at the mercy of her nature. For one whole year, if a new life is to emerge, she is unfit to assume additional risk or overstrain of her normally taxed nervous system. Where, then, is her surplus strength for the extra force to be expended in political excitements” (cited in Pitts, 2012, p. 52)?

Goodwin contributed to the protectionist agenda that excluded women’s participation in politics.

Muller v. Oregon arose in a social context that imagined all women as potential mothers and thus considered them unfit for political participation. Although women were eventually granted suffrage and various positions in the workforce, Muller’s reiteration of protectionist rhetoric illustrates how the conceptualization of women as disabled did not disappear. Rather, scientific claims and sociological “evidence” pointing to women’s supposed physical and intellectual deficiencies allowed the Court to view them as a separate class that needed protection from their own incompetency. Muller helped solidify the construction of reproductive disability by embedding it within constitutional law.

The decision in Muller v. Oregon significantly broke with the Court’s precedential ruling in Lochner v. New York, 198 U.S. 45 (1905) where the Court declared labor contracts a fundamental right. The majority opinion in Lochner asserted that laws, which attempt to interfere with the fundamental right to contract, must demonstrate a compelling governmental interest. It further articulated that protection of workers’ health and safety was a legitimate reason for state interference. However, after accessing the facts of the case, the Court ruled the working conditions listed in Lochner didn’t pose a significant health risk: “We think that a law like the one before us involves neither the safety, morals, or welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act” (Lochner v. New York, 1905,

Protection vs Autonomy

p.59). Therefore, the Court ruled that the state couldn’t regulate labor relations without violating a worker’s constitutional right to contract freely.

Successively after Lochner, the Court in Muller v. Oregon (1908) cited women’s reproductive capacities as a health issue that the state could legitimately protect without violating women’s fundamental right to contract. The case drew upon the rhetoric of disability to address women’s physical vulnerabilities and suggested physical labor had detrimental effects on their reproductive capabilities (Sklar, 2004, p. 340). By illustrating protection of women’s reproductive health, the Court allowed the state, through gender-based legislation, to monitor women’s working conditions in ways that it legally did not for men.

Muller v. Oregon focused on the specific perception of disabled childbearing women to construct safety provisions that would fulfill the state’s necessary and compelling interest in promoting maternal health. Thereby, it recognized that the state’s limitation of women’s work hours is not a violation of their fundamental right to contract. By allowing the state to intervene on women’s behalf, the Court articulated new protectionist rhetoric that emphasized the importance of women’s reproductive organs. Two key provisions listed in Muller explicitly illustrate the use of protectionist language. Drawing upon the rhetoric of disability, the Court argued that it was obvious that a “woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious” and the “physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race” (Sklar, 2004, p. 341). Justifying the use of physical difference for gender-specific legislation, the Court stated: “The two sexes differ in structures of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor… this difference justifies a difference in legislation” (Sklar, 2004, p. 341).

By focusing particularly on the protection of women’s reproductive capacity, the Court articulated a legitimate reason to treat women as a separate class. While the state ruled interference in men’s working conditions as a violation of the fundamental right to contract, the narrative of risk to women’s reproductive health overruled women’s autonomy in the workforce. Consequently, men were granted complete autonomy in the workforce and their role as breadwinner was naturalized. Through the conflation of women’s health and reproductive care, Muller implicitly recognized a particular understanding of gender roles that imagined all women as potential mothers and legitimized their role within the home.

The Court thus reinforced the belief that women were destined primarily for motherhood. Protection of women’s reproductive health and their role within the home became a compelling state objective. Social welfare policies of the twentieth century focused on a specific mode of stability that normalized gendered work within the family; men were destined to become wage-earning fathers, and women were assumed to stay at home with the children and remain financially dependent on their husbands (Boris and Kleinberg, 2003, p.91). The bias against women was evident in the focus on “motherhood than mothers and caregivers than wage earners” (Boris and Kleinberg, 2003, p.91).

Public health policies also followed the protectionist rhetoric articulated in Muller, as maternal health became the reference for women’s health, especially of women of childbearing age. In 1912, the Children’s Bureau was established to improve

67

Ramapo Journal of Law and Society

living conditions of children in the United States; though originally instituted to focus on children’s issues, it eventually extended its objectives to prenatal advocacy and care (Waggoner, 2013, p. 350). During the early twentieth century, the bureau promoted a framework of preconception that women of childbearing age were “pre-pregnant”, and therefore, encouraged them to minimize health risks to protect current or future pregnancies (Waggoner, 2013, p. 347). Waggoner argues that the linkage of women’s health with maternal health occurred in a social policy environment that valued pregnancy and potential motherhood, one that exalted women as mothers and not women qua women” (Waggoner, 2013, p. 347).

Protectionist policy in the workforce relied heavily on the conflation of women’s health and maternal health; women were considered delicate due to their reproductive organs and the law used precaution to legitimately limit or proscribe certain types of work for women. Although many jobs that present dangers to reproductive health involve other physical risks as well, gender-based legislation focuses exclusively on reproductive health, effectively using biological difference to disadvantage women (Norton, 1996, p. 2). For example, according to the National Institute for Occupational Safety and Health (NIOSH), approximately 20% of the 79,000 chemicals found in various workplaces pose risks to reproductive health (Norton, 1996, p. 2). Although these chemicals can harm reproductive structures and functions of both men and women, medical research has focused exclusively on maternal exposure (Norton, 1996, p. 2). Additionally, women are not actively protected from chemicals that pose health risks if they are unrelated to reproduction.

Workplace restrictions and fetal protection laws are embedded with protectionist rhetoric that often denies women autonomy over decisions regarding work and reproduction. For example, although women of childbearing age were often prohibited from work that could damage their reproductive organs, men were not similarly protected or prevented from working in risky environments (Norton, 1996, p. 2).

Rather, men are perceived as autonomous agents who have the capacity to weigh the costs and benefits of working in an environment that may pose risks to their reproductive health (Norton, 1996, p. 3). Conversely, women are repeatedly forced to surrender autonomy to the state’s claim over their reproductive proclivities. By defining all women of childbearing age as potential mothers, preconception health policy demands avoiding all risk to pregnancy or future pregnancy ( Waggoner, 2013, p. 345).

Waggoner argues: “A distinctive feature of many of the enacted gender-specific public policies related to women’s health is a focus on maternity, that is, on the health of women as mothers or potential mothers” ( Waggoner, 2013, p. 345).

Gender-based legislation uses protection as a justification to implement policy that often infringes women’s autonomy in the workforce. This is clear in Muller; the principles outlined by the Court suggest motherhood was women’s primary role and work came second. It remained silent about the potential economic repercussions gender-based legislation might impose upon women, including loss of work or wages.

This suggests the Court assumed women, working or not, relied on men to provide real wages; the underlying idea being “women have always been dependent on men” (Norton, 1996, p. 3). The assumption that women rely on men for wages and could therefore afford not to work continues to permeate labor policies.

Protectionist laws since the 1940’s have built on the premise that since women’s prime responsibility in the family is reproduction, it was justified to deny them income

Protection vs Autonomy

and job opportunities (Norton, 1996, p. 4). For example, some states prohibited women’s employment for a specific time frame before and after the birth of a child.

Although disability insurance plans existed, they either excluded pregnancy altogether or provided reduced benefits for pregnant women (Norton, 1996, p. 3). These laws assumed that pregnant women could rely on their wage-earning husbands and simultaneously naturalized women’s primary role in the home.

As legislators attempted to reform work environments to include women, protectionist rhetoric became persistent in defining what types of work were appropriate for women. The legal justification for exclusion of women often relied on the possibility of harm to reproductive health. During the 1970s, federal regulatory agencies pressured traditionally male-oriented, well-paid jobs to admit women. This mandate prompted a backlash in the form of fetal protection laws, where most women of childbearing age were entirely excluded from certain jobs or positions due to risk of “hazardous exposure” unless they could provide documented evidence of infertility (Norton, 1996, p. 5). Through his research of gender based legislations, including a survey of legislations in 1979, Norton demonstrates that more than 100,000 jobs were formally closed to women because employees provided evidence that these jobs posed a risk to women’s reproductive health (Norton, 1996, p. 5). Despite Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act of 1978, women’s autonomy in the workforce was often overruled by a more compelling interest in reproduction (Norton, 1996, p. 1). Women were not viewed as workers with a legitimate interest or claim to the fundamental right to work, due to the expectation that their primary role was of mothers.

Additionally, women were often left without means to address their concerns.

The protectionist rhetoric that legitimized separate treatment for women in Muller fueled the fetal protection debate that implicitly assumed female workers had no interest apart from reproduction or potential reproduction (Norton, 1996, p. 7).

Constructed as a class without legitimate claims to work, women’s attempt to gain autonomy in the workforce is an uphill battle. For example, until the 1970s, women often struggled in segregated labor unions because they were not perceived as possessing the same right to work as men (Boris and Kleinberg, 2003, p. 96).

The protectionist rhetoric that mandated separate treatment for women, based solely on reproductive capacity, continues to fuel the way we imagine women’s roles in society and legislate their positions in the workforce. The conflation of women’s health with maternal health suggests that women are valued primarily for their reproductive organs or fetuses, and jobs that suspend women’s autonomy in the name of fetal protection continue to ignore women’s physical and emotional health. Current Medicaid policies may deny coverage for women who are not pregnant but will not refuse services to those who are pregnant. As one obstetrician explained: “If you walked into my clinic and told me you’re pregnant, your services are covered. You have coverage instantaneously. Why? You’re pregnant. You know, you’re special” (Waggoner, 2013, p. p. 358). Such policies assume that women’s primary value and function lies in reproduction (Waggoner, 2013, p. 358).

The construction of pregnancy as disability continues to fuel legislation that provides disability-like services to women who are pregnant or with young children but does not provide these same services to men. For example, many states have reserved parking spaces for pregnant women or women with newborns. However, this resource is

69

Ramapo Journal of Law and Society

not available to new fathers. A lobbyist for the Women’s Health Organization illustrated the harm in this approach: “We’ve spent a long time trying to dispel the myth that pregnancy is a disability, for obvious reasons of discrimination. I have no problem with it being a courtesy, but not when a legislative mandate provides for pregnancy in the same way as for disabled persons” (Baynton, 2001, p. 42). Contemporary feminists argue that a more inclusive and just approach would frame fetal protection as a health and safety issue rather than a discrimination issue (Norton, 1996, p. 11). Perhaps this could be achieved by including a holistic approach to women’s health than only maternal health and by acknowledging men’s health as well.

Drawing heavily on social discourse that framed women as disabled and thus incapable of autonomy in the workplace, Muller v. Oregon legitimized the use of gender-specific legislation to protect women’s reproduction. Muller’s decision established a clear difference between men and women’s autonomy: for men, the right to contract is a fundamental right; for women, the right to work is much narrower limited by consideration of interference with reproductive organs or pregnancy. Thus, Muller explicitly classified women as a separate class from men and legitimized their discrimination within the workforce. Subsequent legislation drew upon Muller’s protectionist principles and normalized a particular set of gender norms that placed men in the workforce and women at home. By arguing that women’s main function is reproduction, public policy and social discourse continue to focus on protecting women’s reproductive organs or pregnancy but ignore women’s overall health and autonomy.

References: Baynton, Douglas C. (2001). “Disability and the Justification of Inequality in American History,” in Paul K. Longmore and Lauri Umansky ed. Disability History: American Perspectives. New York: New York University Press.

Boris, Eileen and Kleinberg, S. J. (2003). “Mothers and Other Workers: (Re)Conceiving Labor, Maternalism, and the State”. Journal of Women’s History, 15 (3), pp. 90-117.

Lochner v. New York, 198 U.S. 45 (1905).

Muller v. State of Oregon, 208 U.S. 412 (1908).

Norton, Sue M. (1996). “Jobs, Gender, and Foetal Protection Policies: From Muller v.

Oregon to Johnson Controls,” Gender, Work, and Organization, 3(1), pp. 1-12.

Pitts, Yvonne (2012). “Disability, Scientific Authority, and Women’s Political Participation at the Turn of the Twentieth-Century United States,” Journal of Women’s History, 24 (2), pp. 37-61.

Sklar, Kathryn Kish (2004). “Document: Protecting Women Wage-Workers, Muller v.

Oregon 1908”, in Women’s America, 6th ed. New York: Oxford University Press.

Protection vs Autonomy

Waggoner, Miranda R. (2013). “Motherhood Preconceived: The Emergence of the Preconception Health and Health Care Initiative”, Journal of Health Politics, Policy and Law, 38 (2), pp. 345-371.

71

Ramapo Journal of Law and Society

Charter Schools and Socio-Economic Gaps in Education TIMOTHY GONZALEZ* An inherent gap within the American educational system exists as a direct result of socio-economic disparities present in today’s society. This rift is best highlighted in today’s college admissions process, which struggles to offer equal opportunity to students from different socio-economic backgrounds. Due to the abundance of challenged neighborhoods that exist in America today, these educational issues exist from the onset of a child’s education. Improving the education of the youth in these communities would help bridge the gap that is evident in higher education. An effective way of bringing quality education to students in poverty-ridden communities is the charter school system. Examining charter schools shows that, despite both support and criticism for the system, many students from poor communities have benefitted from the narrowly tailored curriculum and more progressive and unrestrained teaching methods that charters employ. The gaps that exist in our education system become apparent in today’s college admission process. The implementation of charter schools can help bridge these dichotomies.

The socio-economic divide that plagues many American communities ultimately leads to a divide in education. Many students in poverty-ridden regions struggle to receive the same quality of education that wealthier communities do. Joel Klein, former chancellor of New York City’s Public Schools, stated that “Poverty matters: its debilitating psychological and physical effects often make it much harder to successfully educate kids who grow up in challenged environments” (Klein, 2012). Failing to receive a quality education at such a young age prohibits equal opportunity later on in the education system, for example when students apply to college.

The college admissions process is where this dichotomy manifests itself. Many students from struggling socio-economic backgrounds, who have not been educated on the same level as other students, fail to get into the colleges they desire. Their disadvantaged educational past is to blame for diminishing their chance at admissions.

The admissions practices, moreover, have received a fair amount of criticism over the past half-century as a result of these inequalities. The problem is that universities struggle to achieve a competitive admissions system that considers the academic and extracurricular merits of every student while preserving a diverse community.

According to the Supreme Court case Grutter v. Bollinger 539 U.S. 306 (2003), diversity in education is a compelling state interest. That is, admissions systems that work to secure diversity are constitutional under the Strict Scrutiny Test based on the Equal Protection Clause of the Fourteenth Amendment (Raines, 2006). Different universities employ varying systems that strive to accomplish diversity amongst their student body. The University of Texas Austin, for example, uses the Top 10% Rule, which admits every high school student in the top 10% of their graduating class. This is one example of an admissions system that strives to secure diversity in higher education. * Timothy Gonzalez is a Fall 2014 graduate of Rutgers University in New Brunswick. An aspiring lawyer,

Timothy hopes to continue his studies in education, law, and their intersection.

Charter Schools

Attacking this issue earlier in the educational process would promote equality in the admissions process. Students who receive poor educational benefits at an early age struggle to overcome these deficits as they pursue higher education. Opportunities elude grammar and high school students that are subjected to poor school environments. They lack the motivation and resources to fully pursue a successful academic career. Thus, they fall behind students who are educated in wealthy school districts and benefit from increased educational resources. Consequently, socio-economic gaps form. Developing a way to ensure equality at the beginning of the education system can help bridge these gaps. Charter schools may be one method of addressing these needs.

What are charter schools?

Generally, charters are privately run schools that receive government funding.

Often, a group or organization that has an agreement with the state government pioneers the process. Government funding supports most charters: “A public charter school is a publicly funded school that is typically governed by a group or organization under a legislative contract or charter with the state or jurisdiction” (Institute of Education Sciences). Although they are reinforced by a government contract, these charter organizations, many of which are supported by corporations, have autonomy from specific state and local educational regulations. However, they are held accountable for certain standards that are demanded by the charter agreement. Charter school boards, both for-profit and not-for-profit, have the responsibility of satisfying these contractual standards however they see fit. In other words, they have the power to determine curriculum, teacher salaries, and the overall mission of the school.

Attendance is free at these charters, but parents must usually submit a separate application to enroll a child in a charter school, and spaces are often limited (Pascual, 2014). This gives charters the power to deny access to certain students. Finally, “charter schools are privately run institutions, often based on a theme like science and mathematics, or the study of non-English language” (McKeon, 2014). The governing boards of charters can establish an educational theme or mission for their schools.

Charter schools incorporate the independence of private schools and the state funding of public schools.

Charter programs offer a number of benefits for educators, parents, and students alike. Teachers and administrators have the freedom to employ their own educational methods. Administrators can establish curricula that satisfy educational standards while maintaining a flexible system. In the classroom, most charter teachers can break the cookie-cutter effects of administrator oversight. Teachers can employ innovative and experimental instructional practices that can specifically cater to the group of students in front of them. An essential aspect of quality teaching is individuality. Every teacher must have the ability to bring his or her own personal touch to the classroom, they “must own their classrooms” (Howard, 2010). Charters allow this freedom to flourish.

In public schools, teachers are subject to bureaucratic restriction. One New York public school teacher commented on the suffocating bureaucracy of the public school system: "Sometimes I feel like a robot regurgitating the scripted dialogue" (Howard, 2010).

While charters have oversight, they also have the freedom in the classroom to foster progressive educational reforms. The former president of the American Federation of Teachers, Albert Shanker (1988), saw charter schools as a way to empower teachers, free them from overly bureaucratic regulations, and strengthen their voice in school and

73

Ramapo Journal of Law and Society

curriculum decision-making. Charter schools recognize that teachers are the frontline of the education process and strive to give them a voice.

The charter system’s progressive approach to education also enables change and reform to take place more freely. Most charter schools do not have to contend with teacher unions. Therefore, they are able to push reform without much protest. Public school reform has become such an effort to mobilize due to the ongoing contention from public school teachers. From a conservative perspective, the unions’ staunch opposition to meaningful education reform makes serious attempts at reform quite impossible to accomplish (The Heritage Foundation, 2010). The charter system is adaptive, whereas the public school system is ineffectual.

For parents, most charter schools offer a non-traditional means of public education that fosters a collaborative environment. Many of these schools encourage teacher and administrator collaboration, but also work with local businesses to offer students innovative classroom experiences. For example, STEMcivics charter school in Trenton has a partnership with The Liberty Science Center that allows their teachers to hold classes at the Science Center and allows students to utilize their resources (Pizzi, 2014). Partnerships that parallel this example create innovative and advanced experiences for students enrolled in charter schools.

With increased freedom to manage their schools, charter administrations can better tend to parental concerns: “On charter campuses, school leaders are permitted more freedom in managing their school, allowing them to respond in the best interest of both parents and students” (Texas Charter Schools Association). Parents can thus become an integral part in their child’s education. Moreover, the charter system establishes a way “for parents and teachers to cooperate with each other, to build a new structure” (Shanker, 1988).

For parents with children who have special needs, charter schools that focus on educating special needs students are extremely advantageous. Special needs charters can receive the appropriate amount of funding and can give students the needed amount of attention in comparison to public schools that need to allocate funds for other students as well. Ultimately, these schools “provide more choices to families with special educational needs or students who feel underserved by local schools” (Resmovits, 2011).

Finally, charter schools give students in struggling districts an alternative to the failing schools in their communities. In many cases, these alternatives turn out to be successful options. New York City Success Academies’ students can be used as an example of this. The Success schools are performing at the same level as NYC's best schools—gifted and talented schools that select kids based solely on rigorous tests—even though gifted schools have far fewer low-income and minority students. In short, with a population that is considered much harder to educate, Success is getting championleague results (Klein, 2012). Whether it is taking them out of poorly maintained buildings or extending their schools days, disadvantaged students find more opportunities for success in the charter school system.

Many charters have recognized the underserved segments of urban areas and have offered those students viable alternatives. Charter systems create practical instructional programs that promote progress amongst the deprived. AFT’s former President Shanker envisioned “a plan that says that learning mathematics or social studies is more than repeating and regurgitating back things on standardized examinations,” overall a system that helps develop “creativity and other aspects of

Charter Schools

intelligence” (Shanker, 1988, p. 15). Through the targeting of students with particular needs, charter schools offer many students access to advanced education that struggling public school districts can not achieve.

Charter school debates Many cities have benefitted from the implementation of charter schools. In New York City and Chicago, charters have replaced under-used and struggling public schools.

The state has been able to take money from failing public schools and reinvest in alternative options, including charters. In New York City, many charter schools in struggling districts have proven to outperform traditional public schools. For example, “a charter school in the South Bronx outperforms every school in the state outside of New York City, including in the wealthy suburbs” (BloombergView, 2014). The success of these NYC charters has been attributed to the system’s “greater flexibility in staffing and scheduling” as well as their “more rigorous classrooms” (Harris, 2014). This type of success has also been experienced in other cities across the country. Charters in Chicago have proven to increase learning time in areas of need for minority students. The Economist (2014) applauds a 2013 study by Stanford University, which found that the typical Illinois charter pupil (most of them in Chicago) gained two weeks of additional learning in reading, and a month in math, over their counterparts in traditional public schools (see National Charter School Study, 2013).

A curriculum that caters to the needs of the kids has a direct correlation with the success of those students. As experienced in Chicago, minority students are exposed to an environment that promotes learning and education. This not increases performance in charter schools, but also helps underprivileged students overcome the obstacles established by socio-economic gaps.

Adversaries argue that charter schools create more problems than they solve.

Diane Ravitch, a former U.S. Assistant Secretary of Education and a current professor and educational policy analyst, is one major challenger. She contends that government spending on charters takes resources away from public school students: “Charter schools weaken the regular public schools. They take money away from neighborhood public schools and from the district budget. As charter schools open, regular public schools must cut teachers and close down programs to pay for them” (Ravitch, 2012). By pouring funds into charter organizations, the government fails to allocate resources by need, she claims. States are, rather, setting aside a large part of their budget to fund charter initiatives. Many cities in the U.S. are negatively impacted by this redistribution of educational funding. In Middletown, Connecticut, for example, areas without a strong tax base suffer from a decrease in state funds: “Magnet and charter schools hurt districts like Middletown’s which itself has a large population of students in need, and a tax base which makes it difficult to raise the dollars needed to fund its own schools” (McKeon, 2014). As the state reinvests educational funds in charter organizations, public schools lose out on funding. Consequently, public school students experience a decrease in educational resources.

Although New York City has experienced success, the state government is under criticism for its support of charter schools. Governor Andrew Cuomo has recently awarded charter school organizations a significant portion of the state’s 2014 budget while also awarding many charters with property tax incentives. Many education coalitions in the city, specifically the Alliance for Quality Education (2014), are attacking

75

Ramapo Journal of Law and Society

the governor’s plans: “Governor Cuomo’s appearance is extremely troubling considering he is simultaneously severely underfunding public schools. The Governor repeatedly says ‘money doesn’t matter’ in education, but when it comes to giving funding to privately-run charter schools, it’s all about the money.” In this example, the state of New York is pushing legislation that works to secure the success of charter schools. However, the reallocation of funding to charters leads to the underfunding of many public schools.

Similarly, Newark, New Jersey is experiencing educational reform at the hands of state backed superintendent Cami Anderson. Her sweeping “One Newark” plan is set to close six public schools and put some under the management of charter schools in an attempt to revitalize struggling Newark school districts. This plan, however, is criticized for moving too fast. Rather than an all-encompassing charter school plan, many students, parents, and educators are calling for more resources to be put into certain districts. The “One Newark” plan focuses on sweeping education reform with charter schools at the forefront. Newark and its attempts at reform have become a polarizing issue within New Jersey and continue to spark conversation about the merits and drawbacks of the charter school system.

The issue of state funding for charters also leads to the question of “pay-for-play” politics. With many corporate-backed charter school enterprises, challengers claim that government policies in support of these charters are political favors. In New York, Governor Cuomo receives a lot of support from wealthy businessmen who also happen to support charter schools. The recent pro-charter policies put forth by New York State have come under significant scrutiny because of the governor’s connections with Wall Street backers who support charter schools. Celia Green, a member of New York’s Communities for Change, an economic justice advocacy group, argues that the governor has abandoned an education for the kids and is, rather, supporting an education based on corporatization: “The governor needs to stand for all our school children not only corporate charter chains that are backed by billionaire hedge fund managers” (Vinocur and Karol, 2014). This issue encompasses a much larger one, that education is becoming a politicized and corporatized entity rather than a social instrument to improve the lives of the youth. The implementation of charter schools propels this question to the forefront of educational debates.

Race, poverty and charter schools It is also argued that charter schools inherently foster social and racial stratification. In many cases, charters have a predominantly minority or white student population. This fact leads many to the conclusion that charter schools, through admission ceilings, create segregation that is detrimental to the students’ learning and development: “Charters are either very white places or very non-white places. [Charters] are accelerants to the normal segregation of public schools” (Butrymowicz, 2013). States have claimed that the presence of segregation in charters is detrimental to the students’ learning and have thus proposed racial balancing statutes. Their reasoning behind adopting such policies is that “desegregated schools: (1) have a positive correlation to academic achievement; and (2) increase the likelihood of minority students to achieve long-term success in society” (Green, 2001, p.68). These policies suggest that, based on the lack of diversity in charters, they are not beneficial alternatives to struggling school districts.

Charter Schools

Racial stratification is inherently connected to socio-economic disparities in the American educational system. This reality is impossible to ignore. However, the mere presence of racially divided schools does not directly correlate to a poor education. As a society, we have been wired to believe that anywhere there is a racial imbalance or anything that is predominantly black there must be inferiority (Justice Thomas in Missouri v. Jenkins, 1995). Simply because many charter schools are located in urban areas and are predominantly African American does not mean that these schools are failing to educate successfully. Justice Clarence Thomas argues that racial stratification should not and does not prohibit success in education in his concurrence in the 1995 Supreme Court case of Missouri v. Jenkins 515 U.S. 70 (1995). As Thomas notes in this concurrence, “The continuing ‘racial isolation’ of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions.” In other words, if all de jure segregation has been eliminated by the state, the racial makeup of a school is simply happenstance. Inferring this “separation” of races to be segregation suggests “black inferiority:” “After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks. Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve. To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority.” Racial imbalances, Thomas claims, are therefore not unconstitutional and disadvantageous to students. This distinction is incredibly important when considering the charter school question and the racial stratification that occurs.

As already mentioned, diversity in the context of higher education has been ruled a compelling state interest by the Supreme Court in Grutter. In the classrooms of higher education institutions, it can absolutely enhance the students’ learning experience.

However, it is important to note that a lack of diversity in the context of K-12 education does not necessarily lead to a poor education. Diversity is compelling. However, it is not necessary for success. This is a growing sentiment amongst minority communities, specifically African Americans: African-Americans have become more supportive of all-minority neighborhood schools due to their frustration with persistent gaps in academic achievement between blacks and whites and the inconvenience of mandatory desegregation policies. They have also begun to reject the notion that all-black schools are academically inferior and reduce the motivation of black students to learn. (Green, 2001, p.74) The presence of a racial imbalance in school systems does not constitute poor educational experiences for children in elementary schools and high schools. It does not, moreover, prohibit a student’s potential for success.

When discussing socio-economic divides, it is important to acknowledge the connection between race and poverty. The fact that the majority of the children living in poverty are minorities is a reality that cannot be ignored. Diversity as a compelling state interest also ties race into the discussion. Considering this, however, it is important to understand racial imbalance in schools as a product of socio-economic disparities.

Racial imbalance, moreover, is not necessarily detrimental to a student’s future.

Assuming such a thing would, as Justice Clarence Thomas argues, infer a minority inferiority complex: In effect, the court found that racial imbalances constituted an ongoing constitutional violation that continued to inflict harm on black students. This position

77

Ramapo Journal of Law and Society

appears to rest upon the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites. (Justice Thomas, Missouri v. Jenkins) Of course, diversity is beneficial and compelling, however, it is not a requirement for success. Racial divides are inevitable to avoid in many communities across the country. This separation should not connote ineptitude and should not become a question of race. Rather, the American education system can acknowledge these realities, and promote equal equation through the employment of the charter school system.

Although the state funding of charter schools can lead to disadvantaged public school students, the emergence of charter schools in poorer districts does succeed in creating opportunities for students that might not have experienced the same resources in their failing public schools: “In New Jersey, students enrolled in urban charter schools learn significantly more in both math and reading compared to their traditional public school peers” (Parker, 2013). In addition to charters in New Jersey, charter schools in New York and Chicago succeeded in better educating students. Charters encourage education and give more resources to students in struggling socio-economic areas. These success stories should not be overlooked.

In conclusion, charter schools can help bridge the socio-economic gap present in the education system. Through increased resources, tailored curriculums, and government support, charters create improved learning environments for an underserved population of students. They offer parents a viable alternative to the local public school and give teachers more freedom in the classroom. In all, charter schools can help level the playing field for a number of students who would otherwise fall into the socio-economic gap. However, it is important to note that success in the classroom is determined by the amount of effort and care that parents, teachers, and administrators put into their schools. “Simply changing a school's governance structure—for example, from regular public to charter, or from charter to regular public—does not magically lead to better results,” as the AFT urged. What occurs in the classroom and school ultimately affects the students the most. Although charter schools have proven to offer an improved education for a number of disadvantaged students, the reform debate will continue until all students have full access to a high quality education.

References: Alliance for Quality Education of New York. (2014, March 4). Education Groups React to Gov. Cuomo Headlining Charter School Rally. Retrieved from: http://www.aqeny.org/2014/03/release-education-groups-react-to-gov-cuomoheadlining-charter-school-rally American Federation of Teachers. AFT and Charter Schools. Retrieved from: http://www.chicagoacts.org/about-us/aft-and-charter-schools Bloomberg View. (2014, March 13). Charter Schools Are under Attack. Retrieved from: http://www.bloombergview.com/articles/2014-03-13/charter-schools-are-under-attack

Charter Schools

Butrymowicz, Sarah. (2013, July 15). A New Round of Segregation Plays Out in Charter Schools. Hechinger Report. Retrieved from: http://hechingerreport.org/content/ascharter-schools-come-of-age-measuring-their-success-is-tricky_12647/ Center for Research on Education Outcomes. (2013). National Charter School Study.

Retrieved from: http://credo.stanford.edu/documents/NCSS%202013%20Final%20Draft.pdf The Economist. (2014, February 15). Killing the Golden Goose.

Green, Preston. (2001). Racial Balancing Provisions and Charter Schools: Are Charter Schools Out on a Constitutional Limb? B.Y.U. Education and Law Journal, pp. 65-84.

The Heritage Foundation. (2010). Solutions for America: Education Reform. Retrieved from: http://www.heritage.org/research/reports/2010/08/education-reform Harris, Elizabeth A. (2014, October 8). 17 Charter Schools Approved for New York City, Expanding a Polarizing Network. The New York Times.

Howard, Philip K. (2010, November 28). Free the Teachers: Give Classroom Educators, Suffocated by Bureaucracy, Freedom to Inspire Students. NY Daily News.

Institute of Education Sciences. National Center for Education Statistics. Fast Facts.

Retrieved from: https://nces.ed.gov/fastfacts/display.asp?id=30 Klein, Joel. (2012, July 26). New York's Charter Schools Get an A+. The Wall Street Journal.

McKeon, Ed. (2014). Magnet and Charter Schools Create Winners and Losers.

Middletown Press. Retrieved from: http://www.middletownpress.com/opinion/20140402/ed-mckeon-magnet-andcharter-schools-create-winners-and-losers Parker, Suzi. (2013, April 25). Charter Schools vs. Public: Is One Better Than the Other?

TakePart. Retrieved from: http://www.takepart.com/article/2013/04/25/charterschools-are-they-better-public-schools Pascual, Psyche. (2014). Public vs. Private vs. Charter Schools. GreatSchools. Retrieved from: http://www.greatschools.org/school-choice/6987-public-private-charterschools.gs Pizzi, Jenna. (2014, August 18). Same Mission, Different Approaches: Trenton Charter Schools Seek to Address College Readiness. NJ.com. Retrieved from: http://www.nj.com/mercer/index.ssf/2014/08/same_mission_different_approaches_ new_trenton_charter_schools_seek_to_address_college_readiness.html Raines, Douglas. (2006). Grutter v. Bollinger's Strict Scrutiny Dichotomy: Diversity Is a Compelling State Interest, but the University of Michigan Law School's Admissions Plan Is Not Narrowly Tailored. Marquette Law Review, 89(4), pp. 845-879.

79

Ramapo Journal of Law and Society

Resmovits, Joy. (2011, May 18). Georgia Charter School Decision: Educators Protest, Assess Court's Ruling. The Huffington Post.

Shanker, Albert. (1988). National Press Club Speech. American Federation of Teachers.

Retrieved from: http://www.reuther.wayne.edu/files/64.43.pdf Ravitch, Diane. (2012, February 12). Why States Should Say ‘no Thanks’ to Charter Schools. The Washington Post. Retrieved from: http://www.washingtonpost.com/blogs/answer-sheet/post/ravitch-why-states-shouldsay-no-thanks-to-charterschools/2012/02/12/gIQAdA3b9Q_blog.html Texas Charter Schools Association. What Is a Charter School? Retrieved from: https://www.txcharterschools.org/parents-supporters/what-is-a-charter- school.php Vinocur, Julian, and Emily Karol. (2014). RELEASE: Education Groups React to Gov. Cuomo Headlining Charter School Rally - Alliance for Quality Education of New York. Alliance for Quality Education of New York RSS. Retrieved from: http://www.aqeny.org/2014/03/release-education-groups-react-to-gov-cuomoheadlining-charter-school-rally