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UCLA UNDERGRADUATE LAW JOURNAL VOLUME 17

SPRING 2018

ARTICLES

The Legal Argument for Sanctuary Policy Alexia Hatun – UCLA

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Social Science and the Law: The Role of Empirical Evidence in Judicial Decision-Making Alexander Nabavi-Noori – Yale Law School

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Preserving Discourse at Public Universities: The Implementation of Campus Speech Codes and the Resulting First Amendment Conflict Jared Kelly – UC Berkeley

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The Unconstitutional Nature of America’s Money Bail System Jamail Gibbs – UCLA

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The Other Side of Title IX: The Legal Case Against Public Single-Sex Schooling Robert Watson – UCLA

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California’s Conservation (Fire) Camps: Grounds for Protection Under the Fair Labor Standards Act Kristen Schnell – UCLA

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UCLA UNDERGRADUATE LAW JOURNAL VOLUME 17

EDITORIAL BOARD

SPRING 2018

Editor-in-Chief Bapuchandra Kotapati Managing Editor Vanessa Young Associate Editors Chris Busco Isabella Ordorica Copy Editors Chloe Coss Robert Davydov Virginia Foggo Sareen Ishanyan Michelle Korol Axel Sarkissian Jordan Teshima Will Ward President Kunal Jhaveri Vice President Andrew Chang

The UCLA Undergraduate Law Journal is published every Spring quarter by the UCLA Pre-Law Society, located at 4272 Bunche Hall, Los Angeles, CA, 90095. The journal is a student-produced publication written entirely by undergraduate students from UCLA and other universities across the country with the aim of furthering undergraduate legal research. Copies are available at the Pre-Law Society office as well as online at the Pre-Law Society website: www.uclaprelawsociety.com.


Foreword On behalf of our executive board, I am proud to present Volume 17 of the UCLA Undergraduate Law Journal. Over the past six months, our editorial team sifted through our largest-ever pool of submissions to select six thoughtful, carefully-researched articles for the pages that follow. The articles confront pressing problems, ranging from the constitutionality of sanctuary policy and the inequities perpetuated by the money bail system to the role of empirical evidence in judicial decision-making. This volume’s pieces are tied together not by similarity in substance, but by the reasoned and nuanced arguments crafted by each writer. At a time when the issue of balance between free speech and inclusivity on university campuses has come to the fore, our mission as a student-edited journal has taken on critical importance. The journal provides a vital outlet for undergraduates on campus to engage in reasoned discourse, articulate policy critiques, and develop their writing and editing skills. We hope that the articles in this volume foster discussion and reflection on the issues they address. I would like to thank our team for their time and effort on this volume. Our staff worked tirelessly to navigate the intricacies of the submissions, editorial, and distribution processes, and their tremendous dedication is well reflected in the final outcome. As my time at UCLA comes to an end, I am proud of our collective achievement during my three years with the journal and ever more eager to see what the coming years hold. Bapuchandra Kotapati Editor-in-Chief UCLA Undergraduate Law Journal


UCLA UNDERGRADUATE LAW JOURNAL Alexia Hatun*

The Legal Argument for Sanctuary Policy ABSTRACT. Sanctuary policy has been a topic of contentious debate within the American political scene for years, but the debate surrounding this issue has escalated in both tone and urgency during Donald Trump’s presidential campaign and under his administration. This article seeks to contribute to the sanctuary debate by providing a constitutional analysis of sanctuary policy and a legal argument in its favor. I preface my analysis of sanctuary policy with a discussion of undocumented immigrants' constitutional rights, providing a brief overview of the line of judicial precedent which establishes that undocumented immigrants are protected by the Constitution. I then make the following arguments: (1) sanctuary policy serves as a crucial and necessary safeguard for undocumented immigrants’ constitutional rights, especially within the context of the carceral system; (2) sanctuary policy is constitutionally sound, drawing its authority from decades of judicial precedent which supports states’ rights and the anti-commandeering doctrine; and (3) any attempt to coerce jurisdictions into repealing sanctuary policy, or to penalize them for instituting sanctuary policy, is unconstitutional, as it violates the 10th Amendment and the Spending Clause of the Constitution. Finally, I recommend that local and state jurisdictions implement sanctuary policy, so as to provide crucial and necessary protections for the constitutional rights of their immigrant – and specifically, undocumented – populations.

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Alexia is a sophomore History major and an organizer with the Student Labor Advocacy Project of UCLA. She dedicates this article to all eleven million undocumented people living in the United States.

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Introduction Sanctuary policy has been a contentious topic in the American political scene for years, but the debate surrounding this issue has escalated in both tone and urgency during Donald Trump’s presidential campaign and under his administration. Conservative politicians have depicted the presence of undocumented immigrants1 in the United States as an existential threat to the nation. As a presidential candidate, for example, Donald Trump infamously stated that “They’re bringing drugs. They’re bringing crime. They’re rapists.”2 Liberals, on the other hand, condemn the growing barrage of threats targeting undocumented immigrants within the country from Trump’s policies to expand and accelerate the deportation efforts of Immigration and Customs Enforcement (ICE) to the dehumanizing and vilifying rhetoric he wields against undocumented immigrants. A number of local and state jurisdictions with liberal constituencies, in order to 1

The term “alien” is typically used within legal contexts to refer to people who are not U.S. citizens or nationals, but, for the purposes of this article, I will use the term “noncitizen” instead. Additionally, instead of using the terms “illegal immigrant” or “illegal alien,” which refer to non-citizens who overstayed their visas or who entered the country without legal authorization, I will use the term “undocumented immigrant.” The legal jargon used to discuss immigration policy can obfuscate the impact it has upon real people and real families. The term “alien” dehumanizes immigrants and, within the context of the United States’ sanctuary debate, carries a heavily pejorative and racialized connotation – as linguist Geoff Nunberg has stated, the word “‘alien’…suggests strangeness and difference, people who are not of our sort….and it’s revealing that ‘alien’ is far more likely to be used to describe Mexicans and Central Americans than Europeans.” Furthermore, qualifying a human being as “illegal” is not just dehumanizing, but it is legally inaccurate – the act of existing within the U.S. without legal authorization is not a criminal offense, but a civil violation. And ningún ser humano es ilegal. Thus, for the sake of precision and anti-xenophobic ethicality, I will not use the terms “alien” or “illegal immigrant” in this article, except for when they occur within quotations from sources. José Luis Benavides, a professor of journalism at CSUN, says it best: “The words that [people] use frame the political conversation. Using dehumanizing language…makes it easier for people to justify dangerous policies against a particular group. Words really do matter.” 2 Washington Post, Full text: Donald Trump announces a presidential bid, THE WASHINGTON POST (June 16, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/06/16/full-text-donald-trump-announces-a-presidentialbid/?utm_term=.830c256e3f0b.

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counteract the growing animosity towards undocumented immigrants within the United States, have passed so-called “sanctuary bills” seeking to protect undocumented immigrants’ constitutional rights as well as the sanctity of their families.3 The meaning of the term “sanctuary policy” varies from jurisdiction to jurisdiction because it is not defined under federal law. Rather, it is a political term which encompasses a wide range of policies that cities, counties, and states might enact to protect the constitutional rights of undocumented immigrants and to disentangle local law enforcement agencies (LEAs) from federal immigration law enforcement. Sanctuary policy typically includes provisions that prevent local LEAs from complying or collaborating with ICE and Customs and Border Protection (CBP) in the absence of a judicial mandate. It might also regulate the data collection practices of local LEAs to protect the privacy of arrested individuals.4 The scope of sanctuary policy is wide; it can take many forms and be implemented in a variety of ways by different jurisdictions. That said, most iterations of sanctuary policy share two core priorities: local LEAs’ non-compliance and non-collaboration with ICE, CBP, and other federal immigration enforcement agencies. For the purposes of this article, then, I will use the term “sanctuary” as a way to situate specific policies under the broader umbrella of non-compliance and non-collaboration policy. Liberals often advocate for sanctuary policy on both moral and pragmatic grounds, highlighting the cruelty of assisting ICE in ripping apart families and citing statistics showing that sanctuary counties tend to be safer

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See Taryn Luna, ‘Sanctuary state’ bill passes California Senate, THE SACRAMENTO BEE (Apr. 3, 2017), http://www.sacbee.com/news/politics-government/capitolalert/article142502974.html.; Jimmy Vielkind. In response to Trump, Assembly passes 'sanctuary state' bill, POLITICO (Feb.6, 2017), https://www.politico.com/states/newyork/albany/story/2017/02/assembly-passes-sanctuary-state-bill-as-trump-response109389. 4 See, e.g., Searching for Sanctuary: An Analysis of America's Counties and Their Voluntary Assistance with Deportations. Report (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1-min.pdf.

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and economically stronger than their non-sanctuary counterparts.5 Within the public discourse surrounding the issue of sanctuary policy, however, it is also important to include a holistic legal perspective on the constitutionality and legal benefits of sanctuary policy, as well the unconstitutionality of the Trump administration’s threats to defund sanctuary jurisdictions (which have already been undermined in court).6 Thus, in the following article, I will analyze the constitutionality of specific sanctuary policies – namely non-compliance with ICE detainer requests, prohibition of collaborative 287(g) agreements between local LEAs and ICE, and opting local and state jurisdictions of out of the Criminal Alien Program (CAP) – as well as the unconstitutionality of attempts at the federal level to coerce cities, counties, and states into rejecting or repealing sanctuary policy. 7 I will make the following arguments: (1) sanctuary policy serves as a crucial and necessary safeguard for undocumented immigrants’ constitutional rights, especially within the context of the carceral system; (2) sanctuary policy is constitutionally sound, drawing its authority from decades of judicial precedent which supports states’ rights and the anticommandeering doctrine; and (3) any attempt to coerce jurisdictions into 5

See, e.g., Tom K Wong, The Effects of Sanctuary Policies on Crime and the Economy, Report. (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/th e-effects-of-sanctuary-policies-on-crime-and-the-economy/. 6 Elizabeth P. Foley, Trump Can’t Withhold Funds From Sanctuary Cities, NEW YORK TIMES (Apr. 28, 2017), https://www.nytimes.com/2017/04/28/opinion/trump-cantwithhold-funds-from-sanctuary-cities.html. 7 The focus of sanctuary policy on how law enforcement officials interact with undocumented immigrants reflects the central role that the entanglement of local LEAs with ICE plays in disrupting immigrant communities. It should not be construed as an indication that immigrants are a disproportionately criminal population, because they are not. Studies have found that immigrants, regardless of immigration status, actually commit proportionately less crime than native-born citizens. See Richard Pérez-Peña, Contrary to Trump’s Claims, Immigrants Are Less Likely to Commit Crimes, NEW YORK TIMES (Jan. 26, 2017), available at https://www.nytimes.com/2017/01/26/us/trumpillegal-immigrants-crime.html; Philip Bump, Surprise! Donald Trump is wrong about immigrants and crime, WASHINGTON POST (July 2, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/07/02/surprise-donaldtrump-is-wrong-about-immigrants-and-crime/?utm_term=.70f54713b6c9.

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repealing sanctuary policy, or to penalize them for instituting sanctuary policy, is unconstitutional, as it violates the 10th Amendment and the Spending Clause of the Constitution. I. Undocumented Immigrants’ Constitutional Rights Before delving into the details of sanctuary policy, it is important to delineate the legal legitimacy of its objective to protect the constitutional rights of undocumented immigrants and other non-citizens. A number of conservative pundits have asserted that the immigration status of undocumented immigrants precludes them from the protections of the Constitution – Glenn Beck, for example, on his eponymous CNN program, claimed that “illegal aliens…do not have legal rights.”8 Such remarks contradict the basic legal reality that undocumented immigrants are, in fact, protected under the Constitution. Decades of court precedent have established that all people in the United States, regardless of immigration status, are entitled to due process and equal protection under the law. To support this, I will give an overview of four landmark Supreme Court rulings which belong to this line of judicial precedent and explicitly affirm the extension of Fifth, Sixth, and Fourteenth Amendment rights – which delineate the rights to due process and equal protection under the law, amongst others – to all non-citizens: Yick Wo v. Hopkins,9 Wong Wing v. United States,10 Plyler v. Doe,11 and Zadvydas v. Davis.12 These cases have played a crucial role in explicating the constitutional rights of non-citizens, and they demonstrate that the aims of sanctuary policy are on constitutionally legitimate ground. In its ruling for Yick Wo v. Hopkins, the Supreme Court established that the Fourteenth Amendment protects all people within the United States, 8

Glenn Beck, Government Lies about Border Agent Shooting; Author Fears for Life from Islamic Extremists, CNN.COM: TRANSCRIPTS (Feb. 7, 2007), http://transcripts.cnn.com/TRANSCRIPTS/0702/07/gb.01.html. 9 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 10 Wong Wing v. United States,163 U.S. 228 (1896). 11 Plyer v. Doe, 457 U.S. 202 (1982). 12 Zadvydas v. Davis, 533 U.S. 678 (2001).

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regardless of whether they are citizens. Plaintiff Yick Wo sought redress for his subjection to the discriminatory business licensing practices of San Francisco County, which targeted local Chinese laundry owners and devastated their businesses. The Court ruled in his favor, and Justice T. Stanley Matthews delivered the Court’s unanimous opinion that The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality… The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.13

The Court thus determined that all people in the United States, citizens and non-citizens alike, are entitled to equal protection under the law: the Fourteenth Amendment rights of non-citizens are to be respected as those of citizens. This ruling is foundational to the line of judicial precedent which affirms and defends the constitutional rights of non-citizens, and its reasoning is continually cited and expanded upon in cases that further elucidate such rights. Just ten years after the ruling for Yick Wo, the Supreme Court would utilize its logic in Wong Wing v. United States to affirm the Fifth and Sixth Amendment rights of non-citizens.14 In its decision for Wong Wing, the Supreme Court established that all people in the U.S. have due process rights – including non-citizens who entered the country without legal authorization. The cases dealt with a Circuit Court commissioner’s decision to sentence three Chinese immigrants, who had been found eligible for 13

Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). It is important to note that this case also established immigration detention and deportation proceedings as exogenous to the criminal justice system, which has had a devastating impact on undocumented immigrants’ access to due process. Since this issue is beyond the scope of this article, however, I do not explore this aspect of the ruling in further depth.

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removal proceedings, to hard labor during the sixty-day period before their impending deportation. The Supreme Court’s ruling for this case upheld Congress’ right to detain and deport Chinese immigrants per the Chinese Exclusion Act of 1882 and the subsequent Geary Act of 1892, but it found that: (1) the commissioner’s imposition of hard labor on the petitioners violated the Fifth and Sixth Amendments, and (2) the petitioners’ status as non-citizens did not preclude them from receiving these constitutional protections.15 Delivering the majority opinion of the Court, Justice Shiras explicitly affirmed that due process rights extend universally to all people within the United States, including non-citizens such as the petitioners in Wong Wing: Applying [the reasoning of Yick Wo v. Hopkins] to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.16

As such, law enforcement officials cannot simply do as they please in their interactions with immigrants, but must act in accordance with the Fifth Amendment and honor immigrants’ right to due process.17 Wong Wing thus joined Yick Wo in helping to establish and defend the constitutional rights of non-citizens by reiterating that the Fifth and Sixth Amendments are meant to protect all people within the United States, regardless of citizenship or immigration status. These 19th century Supreme Court rulings laid the precedential groundwork for future cases such as Plyler v. Doe and Zadvydas v. Davis, which aggressively reaffirm the constitutional rights of undocumented immigrants within our contemporary context.

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The petitioners could legally be deported because they were in violation of civil immigration law, but since they had not been accused of a criminal offense nor found guilty of one through a judicial trial, they could not be subjected to a criminal punishment such as hard labor. 16 Wong Wing v. United States, 163 U.S. 228, 238 (1896). 17 This is especially important to note within the context of the sanctuary debate, given that many iterations of sanctuary policy involve regulating LEAs’ detainment procedures to ensure that people are not held unjustly.

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The Supreme Court’s ruling in Plyler v. Doe emphasizes the inclusion of all non-citizens, regardless of their immigration status, within the scope of the Fourteenth Amendments’ protections. Plyler addressed revisions within the Texas Education Code which allowed the state to deny free public education to undocumented children. The Court ruled that targeting undocumented children in this way violated the Equal Protection Clause of the Fourteenth Amendment, with Justice Brennan stating in the majority opinion that the “denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.”18 The Court also included within its decision a more direct affirmation of undocumented immigrants’ Fourteenth Amendment rights: Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments.…[The] protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter. Given such presence…he is entitled to the equal protection of the laws that a State may choose to establish.19

This portion of the Supreme Court’s ruling for Plyer unequivocally reaffirms the universal and inclusive application of the Fourteenth Amendment, following the precedent of such cases as Yick Wo and Wong Wing.20 It is crucial to the contemporary sanctuary debate because it expresses in clear terms that undocumented immigrants possess the same right to equal protection under the law that citizens and documented immigrants possess. The final case I will highlight from this line of judicial precedent, Zadvydas v. Davis, used strong and unambiguous language to re-assert the 18

Plyler v. Doe, 457 U.S. 202, 221-222 (1982). Id. at 210-215 (1982). 20 The Supreme Court even cited these cases in its decision for Plyler v. Doe. 19

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constitutional right to due process held by undocumented immigrants. Petitioner Kestutis Zadvydas, an undocumented immigrant who was deemed eligible for removal proceedings, challenged the Immigration and Naturalization Service’s (INS)21 prolongment of his detention past his intended date of deportation. The INS meant to detain Zadvydas until his removal from the United States, but the agency found itself unable to execute his deportation. Continuing to detain him would therefore lead to his permanent confinement within the custody of the INS. The petitioner’s case was ultimately brought before the Supreme Court, and the Court determined that undocumented immigrants cannot be detained indefinitely during the period following their designated date of removal, for this constitutes an illegal deprivation of their liberty and thus violates the Fifth Amendment’s Due Process Clause. The Supreme Court’s decision reaffirms that a person’s immigration status does not preclude them from the Fifth Amendment’s protection: A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any ‘person…of…liberty…without due process of law’… [and it] applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.22

The Supreme Court has thus firmly established that all non-citizens, including undocumented immigrants, are entitled to due process and equal protection under the law just as citizens are. Decades of judicial precedent dictate that one’s immigration status does not preclude them from receiving these constitutional protections. Sanctuary policy seeks to ensure that noncitizens’ constitutional rights are therefore respected and protected just as those of citizens, especially given the rising hostility towards undocumented immigrants within our contemporary political climate. It is crucial to approach the legal analysis of sanctuary policy with an understanding of this. These policies do not ascribe legal rights to a population that does not 21

The INS was the precursor to ICE and CBP. See U.S. Citizenship and Immigration Services, Our History (last visited Dec. 30, 2017), https://www.uscis.gov/about-us/ourhistory. 22 Zadvydas v. Davis, 533 U.S. 678, 690-693 (2001).

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already possess them; rather, they seek to protect the existing constitutional rights of a vulnerable demographic. II. Assessing the Constitutionality of Sanctuary Policy In this section, I will assess the constitutionality of the most common iterations of sanctuary policy: (1) non-compliance with ICE detainer requests, and (2) prohibiting local LEAs from collaborating with federal agencies to help enforce federal immigration law, namely by opting out of 287(g) agreements and the Criminal Alien Program (CAP). These policies work within constitutional bounds to ensure that local LEAs protect immigrants’ due process rights, fight against racial profiling, and refrain from overstepping their jurisdictional authority. A. Non-Compliance with ICE Detainers When an individual whom ICE suspects to be an undocumented immigrant is arrested and placed within the custody of a local LEA, ICE might issue a detainer: a “written request that a local…law enforcement agency detain an individual for an additional 48 hours (excluding weekends and holidays) after his or her release date in order to provide ICE agents extra time to decide whether to take the individual into federal custody for removal purposes.” 23 Sanctuary jurisdictions often prohibit local LEAs from complying with ICE detainer requests. This helps local law enforcement maintain better relationships with the communities they are policing,24 and more importantly, it provides a crucial safeguard for the 23

Immigration Detainers, AMERICAN CIVIL LIBERTIES UNION (last visited Dec. 30, 2017), https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrolabuses/immigration-detainers. 24 See James Queally. Latinos are reporting fewer sexual assaults amid a climate of fear in immigrant communities, LAPD says, LOS ANGELES TIMES (Mar. 21, 2017), http://www.latimes.com/local/lanow/la-me-ln-immigrant-crime-reporting-drops20170321-story.html. (LAPD Police Chief Charlie Beck “expressed concern that ICE's actions might deter crime victims who are in the country illegally from coming forward,” asking people to “‘Imagine, a young woman, imagine your daughter, your sister, your mother … not reporting a sexual assault, because they are afraid that their family will be

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constitutional rights of those targeted by ICE. Furthermore, noncompliance policy is completely constitutionally sound. Lower courts have affirmed that local LEAs are under no legal obligation to comply with ICE detainers - and more often than not, prolonging an individual’s detainment on the basis of an ICE detainer alone actually violates the Fourth Amendment. Detainers are permissive requests, not mandatory orders. Local LEAs have no legal obligation to comply with them, so it is left entirely to their own discretion to decide whether or not to do so. ICE has indicated this itself within its own internal policy memorandums. A memo issued during 2010 describes detainers as follows: A detainer… is a notice that ICE issues to Federal, State, and local law enforcement agencies (LEAs) to inform the LEA that ICE intends to assume custody of an individual in the LEA’s custody. An immigration detainer may serve three key functions— • notify an LEA that ICE intends to arrest or remove an alien in the LEA’s custody once the alien is no longer subject to the LEA’s detention; • request information from an LEA about an alien’s impending release so ICE may assume custody before the alien is released from the LEA’s custody; and • request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody.25 (emphasis added)

The updated version of this policy from early 2017 reiterates the nonobligatory nature of detainer requests in similar terms.26 These documents

torn apart.’”); Immigrant Legal Resource Center, Searching for Sanctuary: An Analysis of America's Counties and Their Voluntary Assistance with Deportations, Report. (Dec. 2016), . (“…when community members see their loved ones funneled to ICE by their local law enforcement, cooperation with law enforcement deteriorates further.”) 25 ICE, Interim Policy Number 10074.1: Detainers, ¶ 2.1 (Aug. 2, 2010), available at http://cironline.org/sites/default/files/legacy/files/ICEdetainerpolicy.PDF (last visited Dec. 30, 2017). 26 ICE, Interim Policy Number 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers, ¶ 3.1 (Mar. 24, 2017), available at https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf (last visited Dec. 30, 2017). (“Detainer. A notice that ICE issues to a federal, state, local, or tribal LEA to inform the LEA that ICE intends to assume custody of a removable alien in the LEA’s custody.).

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indicate that ICE views detainers as voluntary requests rather than mandatory orders for local LEAs’ to assist the execution of federal immigration law. They do not contain any language asserting that detainers impose a legal obligation to comply upon the receiving jurisdiction. Therefore, per the policies issued by ICE itself, local LEAs are not required to comply with detainers. Furthermore, even if ICE intended for detainers to be understood as orders, lower courts have determined that local LEAs would still have no legal obligation to comply. Lower courts have affirmed that detainers are non-obligatory requests which local LEAs are free to decline. They have also noted that detainers are necessarily not mandatory: if detainers were intended as commands rather than requests, they would violate the Tenth Amendment. The Third Circuit Court’s ruling for Galarza v. Szalczyk, for example, notes that [N]o U.S. Court of Appeals has ever described ICE detainers as anything but requests…. [and] no provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorize federal officials to command local or state officials to detain suspected aliens subject to removal…. [A]ll federal agencies and departments having an interest in the matter have consistently described such detainers as requests.27

Then, having established the broad consensus amongst federal executive and judicial bodies that ICE detainer requests are not mandatory orders, the Third Circuit states that “…we must read [Section 287 of the Immigration and Naturalization Act] as authorizing only permissive request that local LEAs keep suspected aliens subject to deportation in custody.”28 In other 27

Galarza v. Szalczyk (U.S. Court of Appeals for the Third Circuit March 4, 2014). Following this portion of the Galarza v. Szalczyk ruling, the Third Circuit also notes that “All Courts of Appeals to have commented on the character of ICE detainers refer to them as ‘requests’ or as part of an ‘informal procedure,’” citing Ortega v. U.S. Immigration & Customs Enforcement, Liranzo v. United States, United States v. Uribe-Rios, United States v. Female Juvenile, and Giddings v. Chandler. 28 Galarza v. Szalczyk (U.S. Court of Appeals for the Third Circuit Mar. 4, 2014); note: The Immigration and Nationality Act (INA), passed in 1952, consolidated existing federal immigration law into a single legislative document and thus contains the “basic body of immigration law.” See Immigration and Nationality Act, USCIS, https://www.uscis.gov/laws/immigration-and-nationality-act. Section 287, in particular,

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words, not only are ICE detainers widely accepted as non-obligatory requests, but ICE does not have the legal authority to issue a detainer as a mandatory order. The court determined that it would be unconstitutional for the federal government to command local and state LEAs to imprison an individual for its own purposes such as through a detainer. Doing so “would violate the anti-commandeering doctrine of the Tenth Amendment”29 established in New York v. United States30 and Printz v. United States,31 and thus, “immigration officials may not compel state and local agencies to expend funds and resources to effectuate a federal regulatory scheme.”32 It is therefore not only legally sound for local LEAs to decline ICE detainer requests, but it is unconstitutional for ICE or any other federal government body to try to force local LEAs into compliance. The constitutional precariousness surrounding ICE’s use of detainers does not end there: in most cases, it is unconstitutional for local LEAs to comply with ICE detainers at all. When an individual is held in custody past their intended release date, that detention constitutes a new arrest, which must comply with the Fourth Amendment.33 This means that the subsequent, prolonged period of detention must have “its own Fourth describes the powers of immigration officers and employees, including their power to issue detainers and the limits placed upon it (INA: ACT 287 - POWERS OF IMMIGRATION OFFICERS AND EMPLOYEES, . USCIS (last visited Jan.2, 2018), https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-09505.html.). 29 Galarza v. Szalczyk (U.S. Court of Appeals for the Third Circuit March 4, 2014). 30 505 U.S. 144 (1992). (“Congress may not simply "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288 (1981).”) 31 521 U.S. 898 (1997). (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”) 32 Galarza v. Szalczyk (U.S. Court of Appeals for the Third Circuit March 4, 2014). 33 Matthew J. Piers, Chirag G. Badlani, Caryn C. Lederer, Memorandum to Tom Cochran, The U.S. Conference of Mayors, and Darrell W. Stephens, Major Cities Chief Association, Re: Legal Issues Regarding Local Policies Limiting Local Enforcement of Immigration Laws and Potential Federal Responses, HUGHES SOCOL PIERS RESNICH & DYM, LTD. (Jan. 13, 2017), www.usmayors.org/wp-content/uploads/2017/02/HSPRD-Memo-on-LocalEnforcement-of-Immigration-Laws-and-Federal-Responses-00732386x9D9DD.pdf.

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Amendment justification, separate from the original reason for custody.”34 To satisfy the requirements of the Fourth Amendment, the local LEA detaining the individual must either have a warrant permitting the continuation of the individual’s detention, or it must establish probable cause of a new offense and receive judicial approval for the new period of detention.35 An ICE detainer is not a warrant and it does not satisfy the probable cause requirement of the Fourth Amendment, so it cannot be used as a legal justification for a local LEA to prolong an individual’s detention. In order to satisfy the Fourth Amendment, ICE detainers would have to establish probable cause “based on specific, individualized facts” that an individual is both (1) a non-citizen, and (2) subject to removal.36 Additionally, that assertion of probable cause would need to receive judicial review and approval within 48 hours of the detainee’s arrest for the prolongment of the detainee’s detention to be lawful.37 ICE detainers do not satisfy these requirements. Detainer request forms contain boilerplate checkboxes for ICE agents to check off, indicating that they have made a determination of probable cause.38 However, these detainer forms do not establish that ICE has made their probable cause determination based on the specific facts of a particular case, as the Fourth Amendment requires.39 They therefore fail to

34

American Civil Liberties Union, ICE Detainers and the Fourth Amendment: What do recent federal court decisions mean? ACLU (Nov. 13, 2014), https://www.aclu.org/other/back grounder-ice-detainers-and-fourth-amendment-what-do-recent-federal-court-decisionsmean. 35 Immigrant Legal Resource Center, Legal Issues with Immigration Detainers, Report. (Nov. 2016), https://www.ilrc.org/sites/default/files/resources/detainer_law_memo_ november_2016_updated.pdf. 36 American Civil Liberties Union, supra note 33. 37 Immigrant Legal Resource Center, supra note 34. 38 DHS Form I-257D, available at https://www.ice.gov/doclib/securecommunities/pdf/immigration-detainer-form.pdf. 39 See Matthew J. Piers et al., Memorandum to Tom Cochran, The U.S. Conference of Mayors, and Darrell W. Stephens, Major Cities Chief Association, Re: Legal Issues Regarding Local Policies Limiting Local Enforcement of Immigration Laws and Potential Federal Responses, HUGHES SOCOL PIERS RESNICH & DYM, LTD., (Jan. 13, 2017). www.usmayors.org/wp-

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make the necessary determination of individualized probable cause to lawfully continue an individual’s detainment in local custody. Furthermore, neither ICE nor the local LEAs that comply with detainer requests have procedures in place to acquire judicial approval for arrest as the Fourth Amendment requires, including when arrest takes the form of prolonged detainment.40 Given the failure of ICE detainers to establish individualized probable cause and to guarantee judicial review from a neutral magistrate, they cannot be used as a legal justification for a local LEA to prolong the detainment of an individual in its custody. Non-compliance policy thus provides crucial protections for the constitutional rights of individuals held in local custody, because it prevents ICE and local LEAs from performing warrantless arrests which violate the Fourth Amendment.41 Furthermore, even if ICE detainers did establish individualized probable cause with judicial review and approval, local LEAs could still be in violation of the Fourth Amendment for complying with detainer requests because it is not within their authority to make civil immigration arrests. The Supreme Court established in Arizona v. United States that “it is not a crime for a content/uploads/2017/02/HSPRD-Memo-on-Local-Enforcement-of-Immigration-Lawsand-Federal-Responses-00732386x9D9DD.pdf. 40 Immigrant Legal Resource Center, Legal Issues with Immigration Detainers, ILRC (Nov. 2016), https://www.ilrc.org/sites/default/files/resources/detainer_law_memo_ november_2016_updated.pdf. 41 ICE does have the authority to make some warrantless arrests, but only within an extremely narrow set of circumstances, which are not applicable to a person who is in the custody of a local LEA. Section 287.2 of the INA allows immigration officers “to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” ICE can therefore only perform a warrantless arrest if it has probable cause to believe that an immigrant is both undocumented and imminently likely to escape its reach. This means that ICE’s warrantless arrest authority does not extend so far as to permit the extended detention of individuals within the custody of a local LEA without judicially approved, individualized probable cause. Individuals being held within a local LEA are definitionally not able to “escape” by virtue of their existing detainment. ICE’s use of detainers thus goes beyond its authority to make warrantless arrests. See INA: ACT 287 - POWERS OF IMMIGRATION OFFICERS AND EMPLOYEES. USCIS. (last visited Jan. 2, 2018), https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-09505.html.

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removable alien to remain present in the United States,” but a civil offense. As such, “[i]f the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent,” because traditionally, local police must have probable cause to believe a criminal offense has been committed in order to make an arrest. 43 The American Civil Liberties Union argues the following: 42

[E]ven if there is probable cause (in the sense of a sufficient quantum of evidence) to believe that a person is a non-citizen who is subject to removal, detaining that person on an ICE detainer may still be an “unreasonable” seizure in violation of the Fourth Amendment, U.S. Const., amend. IV, because state and local LEAs lack the authority to make warrantless civil immigration arrests. 44

Local LEAs which choose to comply with ICE detainers therefore do so at risk of overstepping their jurisdictional authority and thus acting unconstitutionally. Non-compliance policy not only passes constitutional scrutiny, but it actively helps to uphold the principles of the Fourth and Tenth Amendments. Local LEAs have full legal discretion to choose whether to comply with ICE detainer requests, and it is often necessary for them to decline detainer requests in order to act in accordance with the Fourth Amendment, since detention pursuant to an ICE detainer is a warrantless arrest and thus not within a local LEA’s authority to execute. Hence, noncompliance policy plays a crucial role in protecting the constitutional rights of undocumented immigrants – as well as citizens, permanent legal residents, and other non-citizens whom ICE victimizes through racial profiling – from local LEAs’ and ICE’s attempted overreaches of authority.

42

No. 11-182, slip op. at 15 (2011). See Id. 44 American Civil Liberties Union, ICE Detainers and the Fourth Amendment: What do recent federal court decisions mean? ACLU (Nov. 13, 2014), https://www.aclu.org/other/back grounder-ice-detainers-and-fourth-amendment-what-do-recent-federal-court-decisionsmean. 43

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B. Non-Collaboration with Federal Immigration Law Enforcement Non-collaboration policy can take many forms, from prohibiting local LEAs’ direct participation in the enforcement of federal immigration law to limiting the amount of information local LEAs share with ICE. Local jurisdictions might enact these kinds of policies to preserve local resources for local priorities and to build better relationships between its community and its law enforcement officers, amongst other reasons. Non-collaboration policy also helps to combat racial profiling amongst both local LEAs and federal immigration LEAs. In the following section, I will examine the constitutionality and potential legal benefits of specific non-collaboration policies, which: (1) prohibit 287(g) agreements between local LEAs and ICE, and (2) opt local LEAs out of the Criminal Alien Program (CAP),45 thereby restricting ICE’s access to people in local jails and limiting the amount of information local LEAs voluntarily share with ICE. There are many other iterations of noncollaboration policy that I will not address in this article, but the policies I have chosen to highlight represent its general scope. Federal regulations limit the extent to which local LEAs can avoid sharing information with ICE, but in areas pertaining to local officials’ direct participation and voluntary assistance in the enforcement of federal immigration law, local LEAs maintain full discretion to choose not to collaborate. 1. Prohibiting Local LEAs from Entering 287(g) Agreements One iteration of non-collaboration policy prohibits local LEAs from entering into 287(g) agreements with ICE. These agreements, outlined in 45

The Criminal Alien Program, or CAP, is a program that allows Immigrations and Customs Enforcement (ICE) to work with local law enforcement agencies (LEAs) in order to identify “allegedly removable noncitizens who are incarcerated in jails and prisons” and to initiate removal proceedings against them. See American Immigration Council, The Criminal Alien Program (CAP): Immigration Enforcement in Prisons and Jails, Report. (Aug. 1, 2013), https://www.americanimmigrationcouncil.org/research/criminalalien-program-cap-immigration-enforcement-prisons-and-jails.

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the INA §287, allow local LEAs to directly participate in the enforcement of federal immigration law by training and authorizing local law enforcement officers to execute federal immigration law46. Local LEAs have no legal obligation to assist ICE in the execution of federal immigration law by forming these agreements. Doing so is entirely a matter of their own discretion, and it is fully legal for state and local jurisdictions to opt out of 287(g) agreements by instituting policy which bars local LEAs from entering into them. Furthermore, given the 287(g) program’s history of racial profiling abuses, jurisdictions that ban these agreements provide a crucial protection against invidious discrimination from law enforcement officials. Under §287(g) of the INA, local jurisdictions can enter “a contract with ICE to deputize and train select local law enforcement agents to enforce federal immigration laws.”47 287(g) agreements funnel limited local resources towards federal – rather than local – priorities, and they blur the line between local law enforcement agents and immigration agents. This can cause incredible damage to a community’s relationship with local law enforcement.48 Thus, to avoid the misallocation of local funds and to maintain a trusting relationship between communities and local law enforcement, state and local jurisdictions might choose not to form 287(g) 46 INA: ACT 287 - POWERS OF IMMIGRATION OFFICERS AND EMPLOYEES, UCSIS (last visited Jan. 2, 2018), https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-00-9505.html. See also Immigrant Legal Resource Center. "Explainer: County Policies Relating to Immigration Enforcement" in Searching for Sanctuary: An Analysis of America's Counties and Their Voluntary Assistance with Deportations. Report. December 2016. Accessed December 30, 2017. https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1min.pdf. 47 Immigrant Legal Resource Center, Searching for Sanctuary: An Analysis of America's Counties and Their Voluntary Assistance with Deportations, Report. (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1-min.pdf. 48 Immigrant Legal Resource Center, supra note 45.(“…the same local officials responsible for protecting public safety are also those identifying and funneling immigrant community members into the deportation system. A 287(g) agreement means that it is not safe for immigrants to interact with law enforcement…. 287(g) contracts are totally voluntary and do not come with any reimbursement for the staff, time, or other resources the [jurisdiction] spends doing ICE’s work.”)

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agreements with ICE – and it is completely within their legal discretion to do so. Local jurisdictions have full legal authority to restrict local LEAs’ direct participation in the execution of federal immigration law. In fact, in the absence of federal instruction or authorization, local LEAs cannot legally participate in the direct enforcement of federal immigration law.49 While the INA does provide an avenue to authorize local law enforcement officials to participate in federal immigration law enforcement through 287(g) agreements, it does not and cannot compel local jurisdictions to participate.50 Doing so would violate the anti-commandeering principles of the Tenth Amendment, which were delineated in New York v. United States51 and Printz v. United States.52 Furthermore, section 287(g) of the INA, which outlines the eponymous program, explicitly states that it imposes no legal obligation on local or state jurisdictions to enter such an agreement: “Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.”53 Since the INA does not compel participation, local and state jurisdictions are allowed to restrict their participation and opt out of 287(g) agreements. State and local jurisdictions 49

Arizona v. United States, No. 11-182, slip op. (2011). (The Opinion of the Court states that local/state law enforcement officials cannot make an arrest solely on the basis of a civil immigration law violation “absent any request, approval, or other instruction from the Federal Government.”) 50 Michael John Garcia and Kate M. Manuel, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement, U.S. CONGRESSIONAL RESEARCH SERVICE (R43457; July 10, 2015), https://fas.org/sgp/crs/homesec/R43457.pdf. 51 505 U.S. 144 (1992). (“Congress may not simply "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288 (1981).”) 52 521 U.S. 898 (1997). (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.) 53 INA: ACT 287 - POWERS OF IMMIGRATION OFFICERS AND EMPLOYEES, UCSIS (last visited Jan. 2, 2018), https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-09505.html.

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are therefore under no legal obligation to enforce civil immigration law – indeed, are preempted from doing so – and have full discretion to determine whether or not to enter into an agreement with ICE, which deputizes its officials to enforce civil immigration law. With the history of racial profiling linked to the 287(g) program, state and local jurisdictions have a legal incentive to opt out of 287(g) agreements, for doing so allows state and local jurisdictions to protect their communities from discrimination on the part of the law enforcement officials who are supposed to protect and serve them. 287(g) agreements have historically been used as a pretext to justify racial profiling amongst local law enforcement officials,54 and even though ICE underwent a tenuous reforming process to address abuses such as racial profiling within the 287(g) program, there are lingering concerns about the ability of jurisdictions with histories of civil rights abuses to fully address problems of racial profiling as they relate to their involvement with the 287(g) program. Prior to the Government Accountability Office’s first audit of the 287(g) program, many jurisdictions that entered into 287(g) agreements saw changes in their arrest data which clearly suggest that their involvement in the program led to significant racial profiling amongst law enforcement officials. In Davidson County, Tennessee, for example, arrest rates “for Latino defendants driving without a license more than doubled after the implementation of the 287(g) program in that county.”55 Similar effects were observed in Alabama during this time, with “58 percent of motorists stopped by a 287(g) officer [being] Latino, although Latinos make up less than two percent of the population.”56 Therefore, it appears that in many cases, deputation under 287(g) agreements served as a pretext for local law enforcement officials to target Latinx people within their 54

Terror and Isolation in Cobb: How Unchecked Police Power under 287(g) Has Torn Families Apart and Threatened Public Safety, AMERICAN CIVIL LIBERTIES UNION (Oct. 2009), https://www.aclu.org/other/terror-and-isolation-cobb-how-unchecked-police-powerunder-287g-has-torn-families-apart-and. 55 American Civil Liberties Union, Examining 287(g): The Role of State and Local Enforcement in Immigration Law (Mar. 4, 2009), Submitted to the U.S. House of Representatives Committee on Homeland Security. 56 See Id.

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communities solely on the basis of their race/ethnicity. Racially profiling people in this way is completely unconstitutional, regardless of the citizenship or immigration status of the individual subjected to profiling, because it violates the Fourteenth Amendment’s universal prohibition against racial discrimination.57 The 287(g) program was so rife with civil rights abuses such as racial profiling, amongst other issues, that even after several rounds of reform, the DHS itself called for the program to be scaled back.58 Thus, not only do local and state jurisdictions have the legal authority to opt out of 287(g) agreements, but the history of racial profiling linked to the program offers a legal impetus for jurisdictions to prohibit their LEAs from entering these agreements. 287(g) agreements facilitate a toxic entanglement between local LEAs and ICE, blurring the line between local officers and immigration agents and damaging community-police relations.59 Local and state jurisdictions have full legal authority to opt out of the 287(g) program, and it is within their best interest to do so should they want to protect their communities from civil rights abuses such as racial profiling.

57

American Civil Liberties Union, supra note 54. Chris Rickerd, Joanne Lin, and Charanya Krishnaswami, Inappropriate Appropriations: The House Votes to Waste Taxpayer Money on Unnecessary Border and Immigration CIVIL LIBERTIES UNION (Apr. 26, 2015), Enforcement, AMERICAN https://www.aclu.org/blog/immigrants-rights/inappropriate-appropriations-housevotes-waste-taxpayer-money-unnecessary. 59 Lindsay Kee, The Consequences and Costs of a 287(g) Jail Agreement: One Tennessee County's Story, AMERICAN CIVIL LIBERTIES UNION (Apr. 26, 2015), https://www.aclu.org/blog/immigrants-rights/consequences-and-costs-287g-jailagreement-one-tennessee-countys-story. (“While 287(g) was sold as an effective mechanism to deport dangerous criminals and make Nashville safer, when you look at arrests of foreign-born people while it was in place, the percentage of arrests for the most dangerous crimes actually decreased. Instead, 287(g) has denigrated public safety by creating fear of law enforcement in the immigrant community, making people less likely to report crimes.”) 58

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2. Opting out of the Criminal Alien Program (CAP) and Restricting Information-Sharing between Local LEAs and ICE Another form of non-collaboration policy involves prohibiting local and state LEAs from complying with the Criminal Alien Program (CAP), a voluntary program local LEAs can participate in to help ICE identify “allegedly removable noncitizens who are incarcerated in jails and prisons” and initiate removal proceedings against them.60 CAP operates in different ways from jurisdiction to jurisdiction, but there are two main ways local LEAs may participate: by sharing information with ICE about individuals in their custody, and/or by giving ICE access to individuals in their custody for the purpose of screening and interviewing them.61 Just as the 287(g) program has had issues with racial profiling abuses, so has CAP. Furthermore, participation in CAP is also completely voluntary, so local and state LEAs have full legal authority to opt out of it. Critics of CAP have argued that when local jurisdictions opt to collaborate with ICE by complying with CAP, it might “provide an incentive for officers to arrest persons they suspect of being unauthorized aliens based wholly or partly on racial or ethnic characteristics,”62 hoping to assist ICE’s immigration enforcement efforts, but infringing upon the civil rights of community members in the process. This concern has been borne out within jurisdictions that have chosen to comply with CAP. To give one example, a study investigating the effect of the implementation of CAP on arrest rates in Irving, Texas found that the amount of immigration referrals made during the first month of CAP’s implementation was triple the amount made prior to CAP’s implementation, and this increase had a strong correlation with 60

American Immigration Council, The Criminal Alien Program (CAP): Immigration Enforcement in Prisons and Jails, Report. (Aug. 1, 2013),. https://www.americanimmigrationcouncil.org/research/criminal-alien-program-capimmigration-enforcement-prisons-and-jails. 61 See Id. 62 Marc R. Rosenblum and William A. Kandel, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, U.S. CONGRESSIONAL RESEARCH SERVICE (R42057; Dec. 20, 2012), . https://fas.org/sgp/crs/homesec/R42057.pdf.

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the increasing number of “Hispanic arrests for petty offenses” at the time.63 The study concluded that having a “‘fast-track’ immigrant removal process” – in this case, through ICE’s collaboration with Irving’s local LEA under CAP – “encourages local officers to expand the pool of detained Hispanics in an effort to remove as many undocumented immigrants as possible.”64 Thus, when a local LEA collaborates with ICE through the Criminal Alien Program, it runs the risk of facilitating a similar epidemic of racial profiling from local officers eager to assist ICE in the execution of federal immigration law. Since assisting ICE under the CAP is completely voluntary, however, local LEAs can avoid the possibility of subjecting their communities to racial profiling by opting out of the program and prohibiting local officials from sharing access and information pertaining to people in their custody with ICE. That said, federal regulations do restrict what kind of information local and state jurisdictions can choose not to share with ICE and other federal bodies; most notably, §1373 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)65 prohibits local and state jurisdictions from instituting policies that ban the sharing of information with the INS (now ICE) regarding the immigration status of people in their custody. The restrictions that §1373 impose on local and state LEAs’ information sharing policies, however, do not extend any further than prohibiting the limitation of intergovernmental communication about the citizenship or immigration status of an individual. Local and state jurisdictions are thus free to prohibit law enforcement agencies and officials 63

Trevor Gardner II and Aarti Kohli, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program, THE CHIEF JUSTICE EARL WARREN INSTITUTE ON RACE, ETHNICITY & DIVERSITY, U.C. BERKELEY LAW SCHOOL (Sept. 2009) available at http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf. 64 See Id. 65 IIRIRA, amended the INA, making crucial changes to the country’s immigration law such as establishing the 287(g) program. See LII/Legal Information Institute, Illegal Immigration Reform and Immigration Responsibility Act, CORNELL LAW SCHOOL (Aug. 19, 2010), https://www.law.cornell.edu/wex/illegal_immigration_reform_and_immigration_respo nsibility_act.

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from sharing other kinds of information with federal governmental bodies, such as an individual’s criminal case information, custody status, date of release from jail, and more. §1373 also does not require local and state jurisdictions to otherwise assist ICE in acquiring such information by allowing ICE officials access into local jails to interview individuals held in local custody. This means that local and state jurisdictions have the legal authority to institute policy restricting such access to ICE officials. To reiterate, IIRIRA §1373 only prohibits government entities and officials from restricting communication with the INS/ICE about an individual’s citizenship or immigration status. Its restrictions extend no further, which allows for state and local LEAs to limit the sharing of other pieces of information with ICE and other federal immigration enforcement bodies as they see fit. Section 1373 of IIRIRA reads as follows: (a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.66

The only restriction this provision imposes on local and state government is that it prohibits the implementation of policies which bar communication with ICE regarding the “citizenship or immigration status” 66

"Pub. L. 104-208 Illegal Immigration Reform and Immigrant Responsibility Act of 1996." Pub. L. 104-208 Illegal Immigration Reform and Immigrant Responsibility Act of 1996. (last visited Jan. 13, 2018), https://www.uscis.gov/sites/default/files/ocomm/ilink/0-0-010948.html.

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of an individual. It does not contain a mandate for local and state LEAs to collect and share information about individuals’ immigration status with ICE, nor does it include any limitations pertaining to local and state LEAs’ ability to restrict communication about other information pertaining to arrestees.67 The scope of IIRIRA §1373 is therefore narrow enough for sanctuary jurisdictions to legally institute non-collaboration policy, which merely restricts the information and access local and state LEAs give to ICE officials. IV. The Unconstitutionality of Federal Punitive Measures Against Sanctuary Jurisdictions In October 2016, then presidential candidate Donald Trump issued his “Contract with the American Voter,” a 100-day plan for what he intended to accomplish at the outset of his presidency. Among his priorities, Trump included his now infamous threat to “cancel all federal funding to sanctuary cities.”68 Since Trump’s inauguration, his administration has continuously attempted to deliver on this threat and to otherwise compel state and local jurisdictions to conform to his federal immigration agenda – first through the issuance of an Executive Order,69 and when that failed to withstand 67

This isn’t just my personal interpretation of §1373 based on the plain terms of the provision – the Office of Justice affirmed as much in a Q&A document issued during the Obama administration. See Department of Justice, Office of Justice Programs, Guidance Regarding Compliance with 8 U.S.C. § 1373, Jul. 7, 2016, available at https://www.bja.gov/funding/8uscsection1373.pdf. (“Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information. Rather, the statute prohibits government entities and officials from taking action to prohibit or in any way restrict the maintenance or intergovernmental exchange of such information, including through written or unwritten policies or practices.”) 68 Donald Trump's Contract with the American Voter, THE WASHINGTON POST (last visited Jan. 10, 2018), https://apps.washingtonpost.com/g/documents/politics/donald-trumpscontract-with-the-american-voter/2268/. 69 Exec. Order No. 13768, 3 C.F.R. (2017). (“[Sanctuary jurisdictions] are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”)

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scrutiny in federal court, through policy changes within the Department of Justice.70 However, it is unconstitutional for the federal government to coerce local and state jurisdictions into implementing or enforcing federal law – including federal immigration law. In the following section, I will demonstrate the unconstitutionality of the Trump administration’s attempt to compel local and state jurisdictions into conforming with its federal immigration agenda, and I will specifically address Trump’s threat to withhold “all federal funding” from sanctuary jurisdictions. I will do so by invoking the anti-commandeering doctrine established in New York v. United States71 and Printz v. United States72 and the Supreme Court’s determination that the federal government cannot use financial inducements to coerce state and local jurisdictions into making certain policy choices, as expressed in South Dakota v. Dole73 and National Federation of Independent Business v. Sebelius74. The Supreme Court has firmly established that the federal government cannot legally command state and local jurisdictions to enact or enforce federal policies, which means that the attempts of the Trump administration to command sanctuary jurisdictions’ compliance with federal immigration law is unconstitutional. In New York v. United States, for example, the Supreme Court assessed the constitutionality of federal legislation that regulated the removal of toxic waste amongst the States. This legislation offered monetary incentives for States to dispose of the low-level radioactive waste generated within their borders, and these provisions were upheld as constitutional in the Court’s ruling. However, the legislation also included a provision that penalized States for their failure to provide for the removal of its toxic waste, forcing the States to take on liability for any damage caused 70

The United States Department of Justice, Justice Department Announces that Commitment to Reducing Violent Crime Stemming from Illegal Immigration will be Required for Participation in Public Safety Partnership Program, THE UNITED STATES DEPARTMENT OF JUSTICE (Aug. 3, 2017), https://www.justice.gov/opa/pr/justice-departmentannounces-commitment-reducing-violent-crime-stemming-illegal-immigration. 71 New York v. United States, 505 U.S. 144 (1992). 72 Printz v. United States, 521 U.S. 898 (1997). 73 South Dakota v. Dole, 483 U.S. 203 (1987). 74 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).

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by waste that had been generated and not disposed of within their boundaries. The Supreme Court ruled that this latter provision was unconstitutional because it violated the Tenth Amendment, impinging on States’ sovereignty by “commandeering” their legislative process for federal priorities. Justice O’Connor elaborated upon this anti-commandeering principle in the Court’s majority opinion, asserting that States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment. Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program.75

Thus, with New York v. United States, the Supreme Court affirmed that the federal government cannot command state or local jurisdictions to institute or enforce federal policy. This ruling was upheld and expanded upon in Printz v. United States, which addressed Congress’ attempt under the Brady Act to have local officers conduct background checks on gun purchases until a national system was in place to do so. The Court determined that this provision violated the Tenth Amendment on similar grounds as the legislation addressed in New York, and it strongly reaffirmed the anti-commandeering doctrine in its majority opinion: We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.76 75 76

New York v. United States, 505 U.S. 144 (1992). Printz v. United States, 521 U.S. 898 (1997).

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Hence, the Supreme Court reaffirmed, in no ambiguous terms, that the federal government does not have the constitutional authority to command state and local jurisdictions to enforce federal policy. As such, the federal government cannot legally force sanctuary jurisdictions to participate in the execution of federal immigration law, as the Trump administration has attempted to do. Just as the federal government cannot order state and local officials to enforce federal gun laws, nor compel state and local jurisdictions to implement certain policies pertaining to toxic waste removal, it cannot command state or local jurisdictions to institute or enforce federal immigration law. Attempts to do so would face strong anti-commandeering challenges in court.77 Furthermore, while the federal government can provide economic incentives for local and state jurisdictions to institute certain policies, it cannot compel them to do so by creating funding conditions that are arbitrary or unduly coercive. The Trump administration therefore cannot coerce local and state jurisdictions into implementing and enforcing federal immigration law by threatening to withhold “all federal funds” from them. In South Dakota v. Dole, the Supreme Court described the limits that the Spending Clause imposes on the conditions that can be attached to a state or local jurisdiction’s receipt of federal funds: the terms for federal funding of a program must be (1) “in pursuit of the general welfare,” (2) “unambiguously” stated to ensure that the States are “cognizant of the consequences of their participation,” and (3) related “to the federal interest in particular national projects or programs.”78 The Trump administration’s threat to withhold “all federal funds” from sanctuary jurisdictions goes beyond those limits. The conditions attached to federal funding have to be related to the particular program the funding is allocated for, and “general 77

Indeed, they already have. See Maria Sacchetti, Trump blasts federal court ruling that blocks his ‘sanctuary city’ order, THE WASHINGTON POST (Apr. 26, 2017), https://www.washingtonpost.com/local/social-issues/2017/04/25/c9e212c8-29f7-11e7b605-33413c691853_story.html?utm_term=.1dce6cb2ecd2.’; Kelly Cohen, Federal judge rules Jeff Sessions cannot withhold funds from sanctuary cities, THE WASHINGTON EXAMINER (Sept. 15, 2017), http://www.washingtonexaminer.com/federal-judge-rules-jeff-sessionscannot-withhold-funds-from-sanctuary-cities/article/2634613. 78 South Dakota v. Dole, 483 U.S. 203 (1987).

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federal funding [for local and state jurisdictions] has no direct connection to immigration enforcement.”79 The Supreme Court also determined in South Dakota v. Dole that the power given to Congress under the Spending Clause “may not be used to induce the States to engage in activities that would themselves be unconstitutional.”80 The Trump administration would thus be precluded from inducing the States to enforce federal immigration policy on these grounds as well, given the constitutional concerns previously established in this article surrounding detainers, 287(g) agreements, and other forms of federal immigration enforcement policy. Moreover, the Supreme Court again established in National Federation of Independent Business v. Sebelius that the federal government cannot use federal funding conditions as a tool to place unduly coercive pressure on States to comply with federal policy. This case addressed a provision within the Affordable Care Act that “would have withheld Medicaid reimbursement to a state unless that state complied with an expansion of its Medicaid program.” 81 The Court ruled that the federal government’s threat to rescind all of a state’s Medicaid funds amounted to a “gun to the head”82 and thus imposed an unconstitutionally coercive amount of pressure on the States to comply with the Affordable Care Act’s Medicaid expansion provision. The threat to have “all federal funds” 83 withheld from cities that decline to collaborate or cooperate with federal immigration enforcement officials is not only unrelated to the original funding purpose and thus in violation of the conditions established in South Dakota, but it also qualifies as unduly 79

See Matthew J. Piers et al., Memorandum to Tom Cochran, The U.S. Conference of Mayors, and Darrell W. Stephens, Major Cities Chief Association, Re: Legal Issues Regarding Local Policies Limiting Local Enforcement of Immigration Laws and Potential Federal Responses, HUGHES SOCOL PIERS RESNICH & DYM, LTD., (Jan. 13, 2017), www.usmayors.org/wpcontent/uploads/2017/02/HSPRD-Memo-on-LocalEnforcement-of-Immigration-Laws-and-Federal-Responses-00732386x9D9DD.pdf. 80 South Dakota V. Dole, 483 U.S. 203 (1987). 81 Matthew J. Piers et al., supra note 78. 82 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). 83 Donald Trump's Contract with the American Voter, THE WASHINGTON POST (last visited Jan. 10, 2018), https://apps.washingtonpost.com/g/documents/politics/donald-trumpscontract-with-the-american-voter/2268/.

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coercive. The city of New York would lose $10.4 billion in federal funds if the Trump administration could follow through on its threat, a sum so massive that the city would certainly face an excessive and coercive level of pressure to comply.84 In summation, the precedent that the Supreme Court established in South Dakota and National Federation of Independent Business renders the Trump administration’s threat to withhold all federal funding from sanctuary cities entirely unconstitutional. Such a threat surpasses the limits for the creation of federal funding conditions established by the Spending Clause of the Constitution, encourages state and local jurisdictions to engage in unconstitutional law enforcement practices, and is unduly coercive. Still, Trump attempted to deliver on this promise five days after his inauguration with the issuance of Executive Order No. 13768, which called for all federal grants to be withheld from jurisdictions designated as “sanctuaries” by the Attorney General.85 This provision was promptly struck down by federal judges in San Francisco86 and Chicago..87 The former judge ruled that the Executive Order is unconstitutionally coercive, in violation of the Tenth Amendment’s anti-commandeering principles, and in violation of the terms of the Spending Clause given that it “expressly targets for defunding grants with no [relation] to immigration enforcement at all,”88 84 Octavio Blanco, Sanctuary cities risk billions in defiance of Trump, CNN MONEY (Nov. 19, 2016), http://money.cnn.com/2016/11/19/news/economy/sanctuary-cities-trumpfunding/. 85 Exec. Order No. 13768, 3 C.F.R. (2017). (“…jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”) 86 Maria Sacchetti, Trump blasts federal court ruling that blocks his ‘sanctuary city’ order, THE WASHINGTON POST (Apr. 26, 2017), https://www.washingtonpost.com/local/socialissues/2017/04/25/c9e212c8-29f7-11e7-b60533413c691853_story.html?utm_term=.1dce6cb2ecd2. 87 Kelly Cohen, Federal judge rules Jeff Sessions cannot withhold funds from sanctuary cities, WASHINGTON EXAMINER (Sept. 15, 2017), THE http://www.washingtonexaminer.com/federal-judge-rules-jeff-sessions-cannot-withholdfunds-from-sanctuary-cities/article/2634613. 88 City and County of San Francisco v. Donald J Trump, et al. (United States District Court: Northern District of California Apr. 25, 2017).

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supporting the arguments that I have put forth delineating the unconstitutionality of the Trump administration’s attempt to commandeer and withhold federal funding from sanctuary jurisdictions. Conclusion Sanctuary policy provides constitutionally sound measures for the protection of immigrants’ legal rights. Local and state jurisdictions are under no legal obligation to comply with ICE detainers, nor are they required to collaborate with ICE in the execution of immigration law by entering participating in the 287(g) and Criminal Alien Programs. In fact, local and state jurisdictions run the risk of violating the legal rights of their community members should they comply or collaborate with the federal government’s immigration agenda. Compliance with ICE detainers violates the Fourth Amendment because ICE detainers are not warrants, and prolonging an individual’s attention in the absence of a proper Fourth Amendment justification is unconstitutional. Additionally, collaborative programs and agreements between local LEAs and ICE often facilitate, if not incentivize, racial profiling of Latinx and Hispanic individuals. Enacting sanctuary policy is not just a symbolic gesture towards states’ rights, but a crucial way for local and state jurisdictions to protect the rights of all their community members, regardless of their citizenship or immigration status. Furthermore, the federal government cannot commandeer state and local jurisdictions to execute federal immigration law, and it cannot pressure sanctuary jurisdictions through unduly coercive means into repealing its sanctuary policies so as to conform to its federal immigration agenda. Doing so would violate the anti-commandeering principle of the Tenth Amendment and the Spending Clause of the Constitution. Defending the rights of undocumented immigrants through the implementation of sanctuary policy is therefore not an act of charity, nor is it a generous bestowal of legal rights upon a community that does not already possess them.

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UCLA UNDERGRADUATE LAW JOURNAL Alexander Nabavi-Noori *

Social Science and the Law: The Role of Empirical Evidence in Judicial Decision-Making ABSTRACT. Scholars and the federal judiciary have long grappled with questions over the proper role of social science research in judicial decisionmaking. How should courts regard social science research? At what stage is such research appropriately incorporated into the evidentiary record? Who is to determine the validity of this research? And how can such research be used to evaluate claims? Today, in an increasingly technocratic society in which empirical research and data-driven models find a prominent place in policy-making and analysis, federal courts find themselves largely unprepared and underequipped to adjudicate complex social science questions. This article explores the role of social science research and empirical methods in judicial decision-making and how the increasing importance of such research requires new procedural innovations to ensure their effective use in shaping the law. After examining the history of social science research in federal litigation and the corresponding debates over its inclusion, this article will synthesize various proposals prominent in legal scholarship concerning social science research and offer a new procedural model to help federal courts more effectively utilize such research.

*

Yale Law School, J.D. expected 2021; University of California, Los Angeles, B.A. 2017. I am deeply grateful for the many discussions with Christopher Otmar, who helped inspire this Note and without whom it would not have been possible. I also offer sincere thanks to Chloe Coss for her feedback and suggestions. Professor Richard Sander also graciously offered feedback and resources that were immensely helpful in shaping this project.

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Introduction Lawyers are notoriously bad at math and science. In numerous op-eds,1 reports,2 and even critiques from current judges,3 lawyers are taken to task for their technical, numerical, and scientific illiteracy. They deserve the criticism, too. For decades, it has been a running joke—one that even the Chief Justice of the United States has acknowledged4—that those who do not excel at math or the so-called “hard” sciences are better suited for law school. Unfortunately for the public, lawyers—in particular, judges—are regularly tasked with overseeing and adjudicating complicated empirical, scientific, and technical questions. Today, in an age of rapidly accelerating technological innovation that has complicated nearly every facet of our lives, the demands on legal practitioners will only increase. And as policymakers begin to use even more sophisticated mathematical tools and methodologies for crafting ever more powerful and precise public policy outcomes, the need

1

See, e.g., Leila Schneps & Coralie Colmez, Justice Flunks Math, N.Y. Times, Mar. 27, 2013, at A23; Oliver Roeder, The Supreme Court Is Allergic To Math, FiveThirtyEight (Oct. 17, 2017, 6:00 AM), http://fivethirtyeight.com/features/the-supreme-court-isallergic-to-math/ [http://perma.cc/6LY6-HMFU]; Anthony Fowler, Chief Justice Roberts and other judges have a hard time with statistics. That’s a real problem, Wash. Post: The Monkey Cage (Oct. 31, 2017), http://www.washingtonpost.com/news/monkey-cage/ wp/2017/10/31/chief-justice-roberts-and-other-judges-have-a-hard-time-with-statisticsthats-a-real-problem/ [http://perma.cc/7D2G-2GC3]. 2 See, e.g., Ryan Gabrielson, It’s a Fact: Supreme Court Errors Aren’t Hard to Find, ProPublica (Oct. 17, 2017, 8:00 AM), http://www.propublica.org/article/supremecourt-errors-are-not-hard-to-find/ [http://perma.cc/4ZFA-YV8K]. 3 See, e.g., Casey C. Sullivan, Judges Know Nothing About Technology, Judge Says, FindLaw: Technologist, (July 31, 2015, 10:58 AM), http://blogs.findlaw.com/ technologist/2015/07/judges-know-nothing-about-technology-judge-says.html [http://perma.cc/F45X-X38P]; Debra Cassens Weiss, Posner: Lawyers bad at math are an increasing concern; inmate’s blood-pressure suit shows why, A.B.A. J. (Oct. 29, 2013, 12:51 PM), http://www.abajournal.com/news/article/ posner_math_block_lawyers_an_increasing_concern_inmates_blood-pressure_suit [http://perma.cc/KY9P-TFD5]. 4 Erin Fuchs, The 8 Worst Reasons To Go To Law School, Bus. Insider (Oct. 21, 2012, 8:26 AM), http://www.businessinsider.com/bad-reasons-to-go-to-law-school-2012-10/ [http://perma.cc/97M4-4KKR].

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for courts to be able to parse such topics when scrutinizing these decisions is greater than ever before.5 However, the inclusion of empirical methodologies and evidence in complicated legal disputes is nothing new. For nearly a century, empirical social science research6 has been a mainstay of complex litigation on matters of public policy. Social science research has been introduced as evidence in litigation on a broad range of issues including school desegregation,7 unfair housing practices,8 jury composition,9 and even trademark infringement.10 However, in recent years, the use of such social science evidence has become even more pronounced. This is primarily the result of two distinct factors. 5

See, e.g., Emily Bazelon, The New Front in the Gerrymandering Wars: Democracy vs. Math, N.Y. Times Mag. (Aug. 27, 2017) http://www.nytimes.com/2017/08/29/magazine/ the-new-front-in-the-gerrymandering-wars-democracy-vs-math.html [http://perma.cc/ U83U-WCNR] (using complex mathematical and computer models to generate gerrymandered electoral maps). 6 This article repeatedly uses the term “social science research.” Social research refers to scholarship that is concerned with “the institutions and functioning of human society and with the interpersonal relationships of individuals as members of society.” Merriam– Webster’s Collegiate Dictionary (11th ed. 2003). Specifically, I am concerned with empirical social research—that is, social research whose scientific mode of inquiry relies “directly or indirectly on what we experience through our senses: sight, hearing, taste, smell, and touch.” Royce A. Singleton, Jr. & Bruce C. Straits, Approaches to Social Research 35 (5th ed. 2010). This mode of inquiry is typically interested in discovering causal relationships “in which a change in one event forces, produces, or brings about a change in another.” Id. at 25. Fields in the empirical social sciences include, but are not limited to, anthropology, communication, economics, political science, psychology, and sociology. However, the lines between these disciplines are blurred and, often, these fields will overlap in their units of analysis or topics of interest. 7 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (citing a psychological study on children’s racial attitudes to conclude that school segregation based on race is unconstitutional); United States v. Commonwealth of Virginia, 766 F. Supp. 1407 (W.D. Va. 1991) (citing an empirical study demonstrating the educational benefits of single-sex colleges to uphold the Virginia Military Institute’s all-male admissions policy). 8 Shelley v. Kraemer, 334 U.S. 1 (1948). 9 Castaneda v. Partida, 430 U.S. 482 (1977) (ruling that gross statistical disparities constitute prima facie proof of discrimination in jury representation). 10 Often in trademark cases, parties will submit empirical studies such as survey research conducted by marketing firms to justify their claim that their competitors’ practices cause consumer confusion and, thus, violate their trademarks. See, e.g., The Kroger Co. v. Johnson & Johnson, 570 F. Supp. 1055 (S.D. Ohio 1983) (citing survey results as evidence to support Johnson & Johnson’s claim of consumer confusion).

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First, in line with the increasing technical sophistication of public policy and everyday life, courts are grappling with more complicated empirical and technical questions than ever before. Upcoming cases such as Gill v. Whitford11 showcase how policies that rely on highly sophisticated social science research, massive troves of data, and empirical methods pose new challenges to courts who must parse such evidence in resolving disputes. Second, a decades-long trend of high-profile cases litigating important social matters have frequently hinged on social science research to justify changes in Constitutional law in areas such as Equal Protection or Substantive Due Process.12 These recent trends raise the question of how judges and courts will react to the increased prevalence and intricacy of the social science research questions making their way into complex litigation matters. How should courts regard social science research? At what stage is such evidence appropriately incorporated into the evidentiary record? Who is to determine the validity of such evidence? And how can such research be used to evaluate claims or make new law? Unfortunately, few legal scholars have addressed such questions. Today we continue to rely on the basic framework proposed by Kenneth Culp Davis in 1942 that differentiated for the first time “adjudicative facts”—those facts and evidence that pertain to specific cases before a court—and “legislative facts”—facts and evidence, such as social science research, that courts can use as the basis of larger policy decisions.13 11

Gill v. Whitford, 218 F. Supp. 3d 837 (W.D. Wis. 2016), consideration of jurisdiction postponed pending hearing on merits, 137 S. Ct. 2268 (2017). 12 For example, in Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), the court considered the role that gay parents play on childhood development to support its finding that California’s Proposition 8 had no reasonable basis for excluding gay couples from marriage and, thus, violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The court found that “[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and welladjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.” Id. at 95. In Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013), the Court’s decision on whether the University of Texas’s admissions policies inappropriately discriminated against white applicants partly hinged on empirical questions, such as an examination of the school’s use of a Personal Achievement Index. 13 Kenneth Culp Davis, An Approach to Problems of Evidence in Administrative Process, 55 Harv. L. Rev. 364 (1931).

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Although later scholars such as John Monahan and Laurens Walker14 built upon this distinction further and created a model for more adeptly categorizing the types of social science research evidence before the courts, this work has gone largely unimplemented.15 It is now imperative that we address these developments and their implications for the legal field headon to determine the proper role of the courts in a new era of increasingly technocratic policymaking. This article will propose a partial solution to these issues by synthesizing the major scholarship on the role of social science evidence in the law and by proposing a model for how courts should utilize this scholarship as evidence when adjudicating cases. Part I will discuss Realist and Formalist arguments concerning the role of social science research in the adjudicative process and set out an argument supporting the use of such evidence in judicial decision-making. Part II will explore the history of social science research in federal courts, oer a literature review of legal scholarship on the issue, and evaluate current practices. Finally, Part III will oer a new procedural model for how courts should use and evaluate social science research in their decision-making. I. The Role of Social Science in the Law When discussing the role of social science research in the law or debating various jurisprudential models that utilize such research we begin with the assumption that this research does in fact have a role to play in judicial

14

See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986) [hereinafter Social Authority]; John Monahan & Laurens Walker, Social Frameworks: A New Use of Social Science in Law, 73 Va. L. Rev. 559 (1987) [hereinafter Social Frameworks]; John Monahan & Laurens Walker, Social Facts: Scientific Methodology as Legal Precedent, 76 Cal. L. Rev. 877 (1988) [hereinafter Social Facts]. 15 Although the Federal Rules of Evidence provide guidelines on the usage of expert testimony and scientific evidence in the courts, they do not distinguish between the various types and uses of social science research and how those different classes of evidence can be used to interpret existing law or make new law. Fed. R. Evid. 702.

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decision-making. This article gladly accepts that fundamental assumption.16 Nevertheless, it remains useful to take a moment to examine the theoretical underpinnings of this assumption and the scholarly discourse on its development. There are, broadly, two planes upon which the debate over the inclusion of social science research has taken place. These include the competing Realist and Formalist conceptions of jurisprudence and considerations of the impact of empirical social science research on the Rule of Law. The former debate is a long-standing one that reaches far beyond the narrow question presented in this article. However, the introduction and increasing influence of social research in judicial decision-making followed the Realist revolution in the law. In addition, modern debates about social science research in the law continue to track closely with renewed debates among Realists and resurgent Formalists in the form of Originalists and Textualists. The latter debate considers how the use of social science research in judicial decision-making impacts Rule of Law considerations such as the stability of the law. Although these are not the only debates on the topic, they create a suitable foundation from which this discussion can continue. In this Part, I will address both debates and then proceed to outline the jurisprudential benefits of empirical social research. A. Realism and Formalism in Judicial Decision-Making The first theoretical point that has implications for the role of social science in the law is the historical debate between Legal Realism and Legal Formalism. Modern legal thought and theories of jurisprudence have come to derive their most foundational assumptions about the law from a group of influential legal thinkers known as Legal Realists. Beginning in the late nineteenth and early twentieth centuries, great figures of American law including Oliver Wendell Holmes, Louis Brandeis, Roscoe Pound, and Karl 16

It would be beyond the scope of this article to fully address the theoretical arguments underpinning the use of social science research in judicial decision-making. Rather, this article’s primary purpose is to provide guidance for how to use such research effectively.

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Llewellyn began to chart a path away from the more classical notions of jurisprudence held by their predecessors, now known as Legal Formalists. Formalists viewed problems in the law—whether they were questions of statutory interpretation or constitutional law—as having a single, correct solution that could be deduced through the application of legal rules and logic. In this way, they were described, oftentimes pejoratively, as operating “mechanically” with judges playing roles closer to that of automatons than that of critical or skeptical evaluators of the law. 17 Information that did not directly originate from the text of the statute or the constitutional provision, including outside research—such as empirical social science sources or claims of legislative intent—had no place in the process.18 Decisions were purely rational and deductive; their outcomes were inevitable. In contrast, the Realist movement began with a line of thinking known as Sociological Jurisprudence. The main thrust of this precursor to Legal Realism was the idea that judges should interpret statutes in light of social realities and the imperatives of justice, and that they should not be bound by the formalities of the statutory text or even the common law.19 Early leaders of the Sociological Jurisprudence movement, such as Roscoe Pound, emphasized that the law is ultimately a social institution with a social purpose whose real-world implementation and workings are more crucial than merely its abstract content.20 Subscribers to the ideas of Sociological Jurisprudence also recognized the important role of judges in shaping this 17

As one court put it in Green v. Hudson River Railroad Co., 28 Barb. 9, 22 (N.Y. 1858), “I have no alternative but to administer the law as I find it—no dispensation from its injunctions to stand by its ancient landmarks.” 18 For example, in Ives v. South Buffalo Railway Co., 201 N.Y. 271 (N.Y. 1911), the New York State Supreme Court invalidated a state worker’s compensation law as contrary to both the federal and New York constitutions. The court refused to consider a substantial body of social research collected by the legislature to justify the law’s necessity. The court held that “courts must regard all economic, philosophical and moral theories, attractive and desirable though they may be, as subordinate to the primary question whether they can be moulded into statutes without infringing upon the letter or spirit of our written constitutions.” Id. at 287. 19 Oliver Wendell Holmes, Jr., The Common Law (1881). 20 Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 25 Harv. L. Rev. 489 (1912).

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social institution. They did not hesitate to accept that a crucial element of jurisprudence was necessarily legislative, shaping the law through a judge’s views of public policy and not simply from doctrinal commitments.21 In fact, Oliver Wendell Holmes argued that these legislative duties had always been within the judge’s bailiwick, long hidden by the flawed assumption that all legal decisions followed “syllogistically from existing precedents” when, in reality, judges played a significant role in shaping the direction of the law through their decisions.22 Classically, Formalist assumptions had simply relegated this important role to a largely unconscious process that went unacknowledged and unappreciated. The result of these new and revolutionary views on the role of the judge in shaping the law was that, to thinkers like Holmes and Pound, the most important part of the legal system was “not the trial judge who simply dispense[d] justice to litigants but the judge of the appellate court who use[d] the litigation as a means of developing the law.”23 By the 1930s this idea expanded further and Sociological Jurisprudence gave way to the even more radical Legal Realism movement. Although the Realists shared many of the same values as the members of the Sociological Jurisprudence movement, they differed in their fervor and their willingness to further distance themselves from the assumptions of the Formalists. Realists emphasized the subjectivity of judging and displayed even greater distrust of the supposed certainty that legal rules and deductive reasoning could provide in legal decision-making.24 By emphasizing the social ends of the law, Realists opened the door for empirical social research to take the place of strict legal rules as a source of justification in judicial decision-making.25 What began as a revolution in legal thinking, breaking radically from classical conceptions of jurisprudence, has become a foundational set of 21

Holmes, supra note 19. Id. at 35. 23 Pound, supra note 20, at 514. 24 Karl N. Llewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931). 25 G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth Century America, 58 Va. L. Rev. 999 (1972); Jerome Frank, Mr. Justice Holmes and Non-Euclidean Legal Thinking, 17 Cornell L. Q. 568 (1932). 22

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assumptions that has come to be “understood and accepted...everywhere” throughout legal scholarship and academia.26 But despite their broad acceptance, Realist assumptions are not uncontested. Today, there is a renewed and lively debate about the virtues of many fundamentally Formalist assumptions, particularly in the schools of Textualism and Originalism, with Formalists arguing once again that cases should be decided solely on neutral legal principles. 27 This article adopts a Realist perspective of jurisprudence. This perspective is entirely appropriate given the challenges faced by federal courts today. Formalists emphasize the syllogistic, deductive, and logical nature of legal decision-making. However, just as Holmes pointed out over one-hundred years ago, this is a flawed assumption that simply encourages judges to obfuscate the true considerations that lead them to a decision. For Originalists, this means arbitrarily grounding interpretations of necessarily vague constitutional provisions in some notion of what that text would have meant at the time of adoption, irrespective of whether that meaning was the true intention. For Textualists, this means rigidly applying the text of statutes in ways that rely heavily on dictionary definitions, failing to consider that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”28 To an Originalist or a Textualist, perverse results that contravene the dictates of common sense are a small price to pay for the supposed objectivity that their tools bring to the task.

26

John P. Dawson, Legal Realism and Legal Scholarship, 33 J. Legal Educ. 406 (1983). See, e.g., Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 447 (2005) (statement of John G. Roberts, Jr.) (comparing judges to umpires, a largely formalist view); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 2 (1990) (comparing litigators to pitchers and judges to umpires); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38 (1997). 28 Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 61, 67 (1994). 27

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However, we must recognize that in many cases, there simply is no correct answer. Particularly in constitutional law or in the many cases on the dockets of appellate courts, there is no guiding precedent or definitive interpretation that dictates a result. A constitutional provision can be vague, open to multiple competing interpretations, or require application to a problem that its authors could have never anticipated. In the absence of precedential or textual dictates, then, the courts must nevertheless decide what their policy will be on the rule of law before them. But just because many legal questions have no definitive, objectively correct answer does not mean that society elevates federal judges to rulers with an unlimited charter to make decisions that alter the course of our legal institutions. Instead, it recognizes the limited role that judges play as legislators and policymakers to the extent that they must decide how these constitutional or statutory frameworks must be implemented. By relying on outside information, such as social science research, judicial decisions on these matters become grounded in more than just each judge’s biases or beliefs. Instead, these decisions rest on empirically verifiable information that represents the present extent of humanity’s knowledge. Science, a process which also builds upon years of precedent, prior research, and validated assumptions, is thus the perfect way to preserve the syllogistic nature of law. In this way, the law maintains the stability and regularity that a reliance on precedent ensures, even in the absence of such precedent. At the same time, we move away from a rigid conception of the law that ignores its nature as a social institution and move toward a conception that allows that institution to evolve to suit the needs of society. By including in our jurisprudence an awareness of the state-ofthe-art research produced by the social sciences, we ensure that we evolve the law to continually remain abreast of these very needs. B. The Rule of Law To further evaluate the role of social science in the law, we must also consider the implications that the inclusion of such research would have on the Rule of Law. The Rule of Law refers to the general principle that a

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system of equally-applied laws should govern society rather than an arbitrary exercise of power by individuals.29 There have been numerous formal elaborations of the specific requirements that undergird this general principle, dating as far back as Aristotle. The best-known of these are the eight requirements Lon Fuller identifies in The Morality of Law.30 Fuller argues that the law must be: general, public, prospective, coherent, clear, stable, and practicable.31 Scholars have raised concerns over the impact that judicial notice of social research will have on a number of these requirements. I will focus my attention specifically on concerns regarding the stability requirement as this is the principle most often touted as conflicting with the inclusion of social science research and is most significantly affected by the model that I propose later in this article. The principle of stability is arguably the most central feature of the Rule of Law. Persons and institutions rely on the stability and predictability of the law to manage their affairs and ensure that they are abiding by the law as best as it has been understood by the courts.32 Stability and predictability of the law also carry a significant moral weight, ensuring that similar cases will be treated equally and thereby “preserving public respect for judicial decision making” through the principle of stare decisis.33 Social science is, on the other hand, a science—constantly changing. Knowledge in the sciences is tentative in nature and a scientist never assumes they have “achieve[d] complete understanding, nor do they assume access to indubitable truths.”34 Thus, while knowledge gained through the scientific method remains the most reliable way for humans to understand the world around them, there is always more to know, to build upon, and to modify in order to further our understanding.

29

Jeremy Waldron, The Rule of Law, Stan. Encyclopedia Phil. (June 22, 2016), http://plato.stanford.edu/archives/fall2016/entries/rule-of-law/ [http://perma.cc/ TA9D-FRAC]. 30 Lon L. Fuller, The Morality of Law (1964). 31 Id. 32 William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L. J. 1361 (1988). 33 Id. 34 Singleton & Straits, supra note 6, at 27.

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Many scholars—particularly Legal Formalists—argue that including social science research into judicial decision-making would significantly undermine the stability of jurisprudence. For example, the Court’s decision in Brown v. Board of Education of Topeka,35 has been criticized by scholars for its reliance on a study by Kenneth and Mamie Clark purporting to show that segregated schools were injurious to black students. 36 These scholars raise questions not only about the methodological soundness of the original study but also the utility of social science in jurisprudence more broadly.37 They attest that the social sciences are “in many ways pre-sciences” and “do not yet lead to a convergence on particular paradigms as in the physical sciences.”38 Thus, reliance on social scientific studies would subject judicial decision-making to the volatility of the fields that they cite and the political and policy motivations of the researchers. I address the practical component of this concern in the model I propose in Part III of this article.39 However, there are fundamental theoretical flaws in this argument as well. Namely, the Formalist critique of the volatility of social science presumes that the jurisprudential devotion to stare decisis is absolute and ironclad. In fact, an American court does not consider itself “inexorably bound by its own precedents.”40 Instead, scholars have noted that: in the interest of uniformity of treatment to litigants, and of stability and certainty in the law...[the court] will follow the rule of law which it has established in earlier cases unless clearly convinced that the rule was originally erroneous or is no longer sound

35

347 U.S. 483 (1954). See, e.g., Edmond Cahn, Jurisprudence, 30 N.Y.U. L. Rev. 150 (1955); Mark G. Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp. Probs. 57 (1978). 37 Yudof, supra note 36. 38 Id. at 72. 39 There are reasonable measures that courts can take to manage the volatility of their decisions given changes in social science research. I include some suggestions to this end in the model I propose in Part III. See infra Part III. 40 James Wm. Moore & Robert Stephen Oglebay, The Supreme Court, Stare Decisis and the Law of the Case, 21 Tex. L. Rev. 514, 539–40 (1943). 36

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because of changed conditions and that more good than harm would come by departing from precedent.41

This is particularly true in the realm of constitutional law. Although social science research should not be the basis for answering normative or policy questions involving issues of fairness, morality, or values, it is perfectly reasonable to rely on such research to apply our existing constitutional jurisprudence to new situations. In the Obergefell case, the Court said, “[t]he nature of injustice is that we may not always see it in our own times.”42 The majority in Obergefell used psychological studies about the harms of gay marriage bans on same-sex couples not simply to divine a new constitutional right to same-sex marriage out of thin air. Instead, they relied on our expanding knowledge of the harm that a second-class status conferred by the State has—harms that we did not fully understand before social science research on their impact—to find that these bans violated Equal Protection all along. Social science is not radically expanding our constitutional jurisprudence, but, instead, simply providing the evidence necessary to realize that certain policies or institutions were always within the scope of existing precedent and the dictates of the constitution. Finally, there are many cases where the incorporation of social science into judicial-decision making could enhance the stability and predictability of the resulting law. Take, for instance, cases where courts could construct legal standards based on an empirical or statistical test. This is precisely what courts are considering doing in the line of partisan gerrymandering cases reaching federal courts today, such as Gill v. Whitford.43 Should courts decide to opt for a statistical test to determine whether partisan gerrymandering has crossed the line into unconstitutionality, legislatures would be able to easily predict the outcome of any future cases challenging the constitutionality of their maps by simply plugging numbers into an equation. Such statistical tests are already used in employment 41

Id. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015). 43 See Gill v. Whitford, 218 F. Supp. 3d 837 (W.D. Wis. 2016), consideration of jurisdiction postponed pending hearing on merits, 137 S. Ct. 2268 (2017) (asking the Court to adopt a statistical test to determine whether an electoral map is unfairly gerrymandered). 42

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discrimination cases under Title VII of the Civil Rights Act of 1964.44 So, in fact, it is possible that a greater reliance on statistics and empiricism in guiding precedent can enhance the stability and predictability of the law and, in turn, the Rule of Law. II. Social Science as Fact For the remainder of this article, I will discuss the practical role of empirical social science research as a factual basis for judicial decisionmaking in order to develop a new model to guide courts in utilizing such research.45 In this Part, I will first offer a brief history of the use of social research in federal courts and how such research has been differentiated from traditional facts in the evidentiary record in the past using Kenneth Culp Davis’s legislative–adjudicative fact distinction. I will then introduce John Monahan and Laurens Walker’s new classification system for social science research. Finally, I will evaluate the competence of federal courts in effectively interpreting and utilizing social research in their decisions and point out areas for improvement. A. Brandeis Briefs and the Legislative-Adjudicative Fact Distinction Arguments grounded in social science research first reached the Supreme Court in a 1908 brief by Louis Brandeis in Muller v. Oregon,46 a landmark case concerning the constitutionality of an Oregon statute limiting the workday of female factory workers to ten hours. Rather than focusing on 44

42 U.S.C. §§ 2000e–2(a) to (d) (2012). There are other uses of empirical social science research in jurisprudence that I will not cover in this article. These include the use of empirical methods and social research in the formation of legal standards. See, e.g., Castaneda v. Partida, 430 U.S. 482 (1977) (using the concept of statistical significance to evaluate whether underrepresentation of Hispanics on grand juries violated the Fourteenth Amendment); Gill v. Whitford, 218 F. Supp. 3d 837 (W.D. Wis. 2016), consideration of jurisdiction postponed pending hearing on merits, 137 S. Ct. 2268 (2017) (asking the Court to adopt a statistical test to determine whether an electoral map is unfairly gerrymandered). 46 208 U.S. 412 (1908). 45

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legal precedent, Brandeis’s brief on behalf of the State of Oregon contained a substantial body of medical and social science research showing the debilitating effect of long working hours on women and girls to defend the utility of the maximum hours law.47 The brief represented a major departure from typical legal procedure. Brandeis submitted research directly to an appellate court in a written brief rather than subjecting such evidence to the adversarial process at the trial level through the introduction of expert testimony.48 In their opinion upholding the Oregon statute, the Court stated that although the social research submitted by Brandeis “may not be, technically speaking, authorities,”49 the studies would nonetheless receive “judicial cognizance.”50 In the years after the Muller case, so-called “Brandeis briefs” became commonplace in appellate litigation and played a significant role in deciding major constitutional cases.51 However, during this time the courts were reviewing social evidence more or less haphazardly and with no express legal justification for doing so. This pattern continued until Kenneth Culp Davis’s seminal article, published in 1942,52 that formalized the distinction between traditional types of evidence and the new class of social research arriving at the courts. 47

Brief for the Defendant in Error, Muller v. Oregon, 208 U.S. 412 (1908) (“We submit that in view of the facts above set forth . . . it cannot be said that the Legislature of Oregon has no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women’s work . . . .”). 48 John Monahan & Laurens Walker, Judicial Use of Social Science Research, 15 Law & Hum. Behav. 571 (1991). 49 Muller, 208 U.S. at 420. 50 Id. at 421. 51 This was particularly true in wage-and-hour law. For example, in People v. Charles Schweinler Press, 214 N.Y. 395 (N.Y. 1915), a New York court reviewed various medical and industrial investigations before upholding the constitutionality of a law limiting the number of hours women could work. In Bunting v. Oregon, 243 U.S. 426 (1917), the United States Supreme Court conducted a similar review of social science evidence in upholding the constitutionality of a ten-hour workday for millworkers. In numerous other cases during this period, the Court relied heavily on empirical social research in its decision-making. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918); Adkins v. Children’s Hosp., 261 U.S. 525 (1923); Baking Co. v. Bryan, 264 U.S. 504 (1924); Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194 (1934); NLRB v. Jones & Lauglin Steel Corp., 301 U.S. 1 (1937); Moorehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). 52 Davis, supra note 13.

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Davis distinguished between two types of “fact” that courts encounter. The first type, legislative fact, refers to facts that courts use to decide questions of law or policy, whereas the second type, adjudicative facts, refers to facts used to decide questions of interest only to the immediate parties of a lawsuit.53 Davis’s distinction was crucial as it explicitly recognized, as Legal Realists did, that courts play various roles as both adjudicators of facts between specific parties as well as mini-legislatures, shaping a body of law that is continually “in flux” as judges create and discard law to meet social needs.54 Scholars quickly approved of Davis’s legislative–adjudicative fact distinction,55 but the courts were slow to see the difference. For example, in Brown, the Supreme Court famously cited social research that supported the position that segregated public education irreparably harmed black children.56 However, in doing so, the Court did not acknowledge its role as a legislative body in finding segregation unconstitutional as a matter of policy and, instead, simply cited the social research in a footnote,57 referring to it as “modern authority.”58 This casual, seriatim treatment of the research obscured the fact that the Court was reversing decades of Fourteenth Amendment and Equal Protection jurisprudence59 not on the basis of logic

53

Davis, supra note 13, at 402. Davis commented that: [w]hen an agency finds facts concerning immediate parties—what the parties did, what the circumstances were, what the background conditions were—the agency is performing an adjudicative function, and the facts
may conveniently be called adjudicative facts. When an agency wrestles with a question of law or policy, it is acting legislatively, just as judges have created the common law through judicial legislation, and the facts which inform its legislative judgment may conveniently be denominated legislative facts. Id. 54 Llewellyn, supra note 24, at 1235. 55 See Clarence Morris, Law and Fact, 55 Harv. L. Rev. 1303, 1318–25 (1942); Charles E. Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1295 (1952). 56 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). 57 Id. at 494 n.11. 58 Id. at 494. 59 See Plessy v. Ferguson, 163 U.S. 537 (1896); Cumming v. Board of Education, 175 U.S. 528 (1898); Berea College v. Kentucky, 211 U.S. 45 (1908).

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or precedent, but on the basis of new information, empirically discovered, that expanded our view of the protections these provisions offered. Following the Court’s decision in Brown, social science research became increasingly commonplace in judicial decision-making. Soon, the courts also came to expressly acknowledge the distinction between legislative and adjudicative facts and how this distinction reflected their distinct roles as both legislators and adjudicators.60 This has led the courts to rapidly expand their consideration of this research and use it as a basis for a wide variety of decisions. However, in the decades since the Brown decision, empirical research has only become more vast and complicated. Unfortunately, the legislative–adjudicative distinction fails to answer key questions courts now face including how the courts should obtain social science data, how they should evaluate the validity of said data, or the precedential weight of such evaluations. B. Social Facts, Social Frameworks, and Social Authority The limitations of Davis’s legislative–adjudicative fact distinction have persisted in federal courts in the decades after its introduction. Although the courts have revitalized their procedures for admitting expert testimony, 61 they have continually ignored the particularities of social science research and its special role in assisting judges in shaping policy, particularly at the appellate level. In response to these deficiencies and because of the proliferation of significant cases relying on social science research, Professors John Monahan and Laurens Walker extrapolated on the legislative–adjudicative 60 See Broz v. Schweiker, 677 F.2d 1351, 1357 (11th Cir. 1982) (“The legislative/adjudicative fact distinction . . . has been widely accepted in the federal appellate courts”); Concerned Citizens v. Pine Creek District, 429 U.S. 651, 657 (1977) (“the determination of legislative facts does not necessarily implicate the same considerations as does the determination of adjudicative facts”); Lockhart v. McCree, 476 U.S. 162 (1986) (repeatedly referring to “legislative facts” at issue in the case). 61 See generally Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Fed. R. Evid. 702.

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fact distinction and proposed a three-part classification for social science evidence: social facts, social frameworks, and social authority.62 The utility of this new, three-part classification for social science evidence is that it allows courts to better differentiate their roles as adjudicators and legislators, separating out social science evidence used narrowly for the purpose of factfinding and evidence used to shape new law. As a result, this classification system presents an ideal foundation upon which we can lay a new model to guide courts in their use of social science research. The crucial factors at issue in a system classifying social science research before federal courts are how they distinguish these sources in terms of: (1) the level of specificity of the research and how this research relates to the case at hand, (2) the generalizability of this research to other cases, and (3) how the conclusions and methodologies of the research affect precedent. In this section, I will briefly delineate the various classifications that Monahan and Walker have produced, describing how each classification answers these questions, before finally incorporating them into my model in Part III. 1. Social Facts Social Facts are used to empirically “prove case-specific facts” that are relevant only to the immediate parties of a lawsuit and bear the most resemblance to Kenneth Culp Davis’s adjudicative facts.63 Social Facts are abundant in diverse cases ranging from Title VII employment discrimination suits to trademark disputes as plaintiffs try to provide empirical support for their factual conclusions. For example, in Hazelwood School District v. United States,64 the U.S. Attorney General sued the Hazelwood School District, alleging a “pattern or practice” of discrimination against African Americans in hiring new teachers in violation of Title VII. To show that the school district was engaged in unlawful

62

See Social Facts, supra note 14; Social Frameworks, supra note 14; Social Authority, supra note 14. 63 Social Facts, supra note 14, at 881. 64 433 U.S. 299 (1977).

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discrimination in its hiring practices, the government provided statistical evidence showing hiring discrepancies between black and white applicants. In the arena of trademark disputes, firms also routinely retain social scientists to conduct surveys to demonstrate that a competing firm violated the Lanham Trademark Act65 by creating consumer confusion. For example, in Processed Plastic Co. v. Warner Communications,66 Warner, the owner of “The Dukes of Hazard” television series, sued the Processed Plastic Company for producing and marketing toy cars that strongly resembled the car used in the series. Although Warner had licensed several toy companies to make such replicas, the Processed Plastic Company did not have a license to do so. In their suit, Warner introduced the results of a survey they conducted showing that eighty-two percent of children misidentified the Processed Plastic car as the car from “The Dukes of Hazard.” The trial court and the Seventh Circuit both agreed that this evidence sufficiently demonstrated consumer confusion over the disputed trademark. In both Hazelwood and Processed Plastic, the courts were tasked with evaluating empirical evidence to prove “adjudicative” facts that concerned only the parties to the specific case. The only feature distinguishing Social Facts from typical sources of evidence is the underlying social science methodologies used to arrive at their conclusions. It remains the job of the parties before the court to obtain such evidence through their process of fact-finding and discovery. Courts must then evaluate such evidence for its methodological soundness and validity.67 Finally, Monahan and Walker offer two innovative procedural recommendations to guide federal courts in their use of Social Facts. The first is that federal courts should determine the admissibility of Social Facts just as they do with expert testimony under the Federal Rules of Evidence: through a determination of the relevance and probative value of such evidence.68 The second is that the methodology and specific application of 65

15 U.S.C. §§ 1051–1072, 1091–1096, 1111–1127, 1141, 1141a–1141n (2012). 675 F.2d 852 (7th Cir. 1982). 67 See generally Singleton & Straits, supra note 6, at 32–35 (explaining the concept of scientific validity). 68 Social Facts, supra note 14, at 882–84. 66

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said methodology underlying Social Facts be conceptually separated, with the methodology of the research carrying precedential weight for future cases.69 Monahan and Walker analogize research methods with legal precedent, in that “[l]ike law, methodology applies generally and produces results applicable beyond particular instances.”70 Whereas the conclusions of a specific application of a research methodology to the facts of a case would be limited to that case, the methodology itself could be used to find facts in future cases. For instance, in the Hazelwood case, the Court concluded that to “constitute prima facie proof of a pattern or practice of discrimination,” a plaintiff must show “gross statistical disparities.”71 In sum, Social Facts: (1) utilize empirical research narrowly tailored to answer case-specific questions, (2) contain conclusions that are solely casespecific and cannot be applied to questions presented in future cases, and (3) establish precedent based on their methodology rather than the specific findings of the study. 2. Social Frameworks Social Frameworks function as a hybrid category that bridges the gap between adjudicative facts and legislative facts. Unlike Social Facts in which empirical research provides the basis for establishing specific facts about a case, Social Frameworks offer “general research results [that] are used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.”72 Social Frameworks attempt to contextualize other, more traditional evidence presented in a trial. Social Frameworks often appear in cases concerning eyewitness testimony, sexual victimization, or capital punishment.73 For example, in Arizona v. Chapple,74 the primary evidence that a defendant committed a murder was the testimony of two 69

Id. at 885. Id. at 888. 71 Hazelwood School District v. United States, 433 U.S. 299, 307–308 (1977). 72 Social Frameworks, supra note 14, at 559 (emphasis added). 73 Id. 74 135 Ariz. 281 (Ariz. 1983). 70

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eyewitnesses. At trial, the defense introduced the expert testimony of a research psychologist who testified to studies highlighting factors that can affect the reliability or accuracy of witness testimony such as time, stress, and witness confidence. In another case, Minnesota v. Myers,75 the defendant was convicted of criminal sexual misconduct involving a child. As part of their case against the defendant, the prosecution introduced expert testimony by a social scientist who testified to behavioral traits often observed in abused children and that were present in the child complainant as well. In each of these cases, parties to the trial submitted expert testimony or evidence grounded in social science research to help contextualize other evidence at trial. And unlike Social Facts, the research that makes up Social Frameworks is general and not case-specific.76 Expert testimony by psychologists, for example, pull from the broader literature of the field of psychology and not from studies conducted specifically for the respective cases. In this way, the studies cited are not purely adjudicative—the research is not limited in applicability to the case at hand—or legislative—the courts do not use the research to shape the law, but instead as an aid in disposing of the specific case. Monahan and Walker note that Social Frameworks thus occupy a unique place in the courts. Social Frameworks can be introduced either by the parties to the suit or sought by the judge herself to contextualize the evidence in the trial. The judge must still determine the admissibility of Social Frameworks based on their relevance and probative value in line with the requirements for expert testimony and scientific information under the Federal Rules of Evidence. However, in the case of Social Frameworks, it is the conclusions of the research that would receive precedential weight in an analogy to established law.77 This is because the conclusions of the research are generally applicable and can help contextualize similar evidence in future cases.

75

359 N.W.2d 604 (Minn. 1984). Social Frameworks, supra note 14, at 569. 77 Id. at 585–86. 76

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In sum, Social Frameworks: (1) consist of general research findings used to contextualize case-specific evidence, (2) contain conclusions that can contextualize evidence in future cases, and (3) contain findings that contextualize or provide background information for facts that establishes precedent in the review of those facts by future courts. 3. Social Authority Social Authorities are the basis of judicial lawmaking and consist of any empirical, scientific resources that judges use to shape the law. Examples of Social Authorities abound in nearly every area constitutional law. The Supreme Court famously used research from social psychology to find racial segregation unconstitutional under the Fourteenth Amendment in Brown.78 The Court cited sociological surveys to establish the unconstitutionality of a state statute excluding males from enrolling in state-supported nursing schools79 and relied on behavior studies to defend the constitutionality of state obscenity laws.80 Research on group decisionmaking has made appearances in numerous cases on the subject of jury size.81 Eighth Amendment jurisprudence is shaped by research into questions of the death penalty’s deterrence ability,82 on the maturity and development of criminal defendants under the age of eighteen,83 and on the cruelness of certain modes of punishment.84 And, most recently, federal courts across the country became modern fora in which the final debates over the constitutionality of statewide gay marriage bans took place. In these

78

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982). 80 Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973). 81 Williams v. Florida, 399 U.S. 78 (1970); Colgrove v. Battin, 413 U.S. 149 (1973); Ballew v. Georgia, 435 U.S. 223 (1978). 82 Furman v. Georgia, 408 U.S. 238 (1972). 83 Roper v. Simmons, 543 U.S. 551 (2005). 84 Miller v. Alabama, 567 U.S. 460 (2012). 79

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cases, federal judges heard evidence from economists,85 demographers,86 historians,87 political scientists,88 psychologists,89 and sociologists90 on issues of child development, taxation, marital and procreative behaviors, the social purpose of marriage, and the harms imposed by same-sex marriage bans. In each of the preceding cases, federal courts were tasked with receiving and evaluating empirical social research from a wide range of disciplines. The results of said research not only guided the courts in deciding the cases before them, but also led those courts to shape and mold the law, establishing new legal principles and precedent. Just as with Social Frameworks, Monahan and Walker argue that it is the conclusions of such research that should receive precedential weight.91 Unlike with Social Facts and Social Frameworks, the goal of Social Authorities is not to help the court dispose of a particular case but, instead, to persuade the court to construct a new legal rule that will guide the disposition of future cases. Thus, Social Authorities, as the basis for these new legal rules, take on a “future-oriented generality that case precedent possesses” and can help guide the disposition of future cases based on the empirical facts they establish.92 Thus, Social Authorities: (1) consist of general research that is applied to the legal questions in a specific case, (2) are generalizable to any future case involving a similar legal issue, and (3) establish precedent based on both their methodology and findings and by directly influencing the applicable legal rules. 85

Transcript of Proceedings at 677–805, 1320–1477, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. c 09-2292-vrw). 86 Expert Witness Report of Gary J. Gates, Ph.D., Deboar v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) (No. 12-cv-10285). 87 Expert Witness Report of Nancy F. Cott, Ph.D., Deboar, 973 F. Supp. 2d 757 (No. 12-cv10285). 88 Transcript of Proceedings at 1746–1881, Perry, 704 F. Supp. 2d 921 (No. c 09-2292-vrw). 89 Id. at 1003–1124; Expert Witness Report of David M. Brodzinsky, Ph.D., Deboar, 973 F. Supp. 2d 757 (No. 12-cv-10285). 90 Expert Witness Report of Michael J. Rosenfeld, Ph.D., Deboar, 973 F. Supp. 2d 757 (No. 12-cv-10285). 91 Social Authority, supra note 14, at 490–93. 92 Id. at 491.

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C. The Systematic Research Deficit in Federal Courts Before turning to my proposed model for guiding courts in their future encounters with social science research, it would be fruitful to take a moment to appreciate just how poorly courts are presently managing this responsibility. Various studies have shown that the Supreme Court frequently makes errors of fact, misinterprets or mischaracterizes empirical evidence, or uncritically accepts research conclusions presented to it that turn out later to be invalid. The larger problem among federal courts is twofold: judges seem to have a natural aversion toward incorporating social research into their decision-making and, even when they do, they often misuse or misunderstand the research. For example, a 2017 ProPublica report studied dozens of Supreme Court decisions from recent years and found that the Court regularly made mistakes over even rudimentary matters of fact.93 For example, in one decision members of the Court made the error of citing incorrect voter registration numbers between blacks and whites in deciding to strike down the preclearance provision of the Voting Rights Act of 1965.94 In another instance, the Court cited inaccurate statistics on crimes committed by undocumented immigrants from a study with a questionable methodology.95 And finally, the Court has included in its opinions inaccurate descriptions of DNA analysis that misuse scientific terms and mischaracterize the methodology and accuracy of DNA testing.96 Some of the Court’s errors in understanding research have significant ripple effects for lower courts. In a 2002 case, McKune v. Lile,97 the Court quoted a statistic stating that the “rate of recidivism of untreated [sex] offenders has been estimated to be as high as 80 percent,”98 a statistic that has been “unquestionably repeated by almost all other lower courts that have upheld the public safety need for

93

Gabrielson, supra note 2. Shelby County v. Holder, 570 U.S. 2 (2013). 95 Arizona v. United States, 567 U.S. 387 (2012). 96 Maryland v. King, 133 S. Ct. 1958 (2013). 97 536 U.S. 24 (2002). 98 Id. at 33. 94

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targeted sex offender restrictions.”99 It turns out that this statistic is inaccurate and did not come from a peer-reviewed journal, but instead from an offhand comment on a magazine website.100 The Court has also come to rely heavily and often uncritically on information provided in amicus briefs. In a study of the Court’s reliance on these briefs, Allison Orr Larson found that the justices are increasingly citing these “eleventh-hour, untested, advocacy-motivated claims of factual expertise,” despite the generally low quality of research found within them.101 However, the preceding cases all represent instances where the Court at least attempted to seek out relevant facts, figures, and research to support their decisions. In some recent cases, such as the major labor union case Janus v. AFSCME,102 the Court has received criticism for showing no interest at all in learning about relevant labor statistics or studies about union agency fees. 103 Scholars have long noted the general reticence among judges, and lawyers generally, to utilize social science research,104 and federal courts are a prime example of this trend. As a result, any proposal for improving social science research usage in federal courts must consider this fundamental research deficit in addition to the procedures for their use. III. A New Model for Social Science as Fact The current state of social science research use in federal courts is incoherent. There is little regularity, process, or stability in the introduction of empirical social research. Although the preceding classification system developed by Monahan and Walker is a step toward a more cogent 99

Melissa Hamilton, Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 58 B.C. L. Rev. E. Supp. 34, 39 (2017). 100 Adam Liptak, Not a Lot of Evidence Behind a Supreme Court Ruling on Sex Offenders, N.Y. Times, Mar. 7, 2017, at A10. 101 Allison Orr Larson, The Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014). 102 851 F.3d 746 (7th Cir. 2017), cert. granted, 198 L. Ed. 2d 780 (2017). 103 Garrett Epps, When the Supreme Court Doesn’t Care About Facts, The Atlantic (Feb. 27, 2017), http://www.theatlantic.com/politics/archive/2018/02/when-the-supremecourt-doesnt-care-about-facts/554354/ [http://perma.cc/Z673-UMXX]. 104 Philip R. Lochner, Jr., Some Limits on the Application of Social Science Research in the Legal Process, 1973 Law & Soc. Ord. 815 (1973).

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theoretical framework, it still lacks a practical plan of implementation. Given these classifications, with their distinct roles, uses, and implications, how should courts incorporate them into their procedures for hearing cases? The goal of this new model is to incorporate Monahan and Walker’s classifications for social science research into a set of procedural guidelines for federal courts to follow when such research presents itself in cases. I also intend to show how this model addresses some of the most common concerns about social science’s inclusion in judicial decision-making that I covered in the preceding Parts of this article including the threat to the stability component of the Rule of Law and the significant research deficit in federal courts today. Thus, the goal of this model is to provide answers to the following, crucial questions: (1) When is social science research evidence introduced; (2) Who is responsible for introducing that evidence; (3) How do we determine relevance and validity of that evidence; (4) Who is responsible for evaluating relevance and validity; (5) Once used, how does social science evidence impact the disposition of future cases? This model will argue that the key to answering these questions and guiding courts in a more coherent use of social science research will be to utilize the different roles of trial and appellate courts as a starting point to determine when each class of social science research is appropriately introduced. By using this as our guiding principle, we can more clearly delineate the roles of each court in assessing such evidence and create a more coherent procedure for litigants to introduce such evidence. A. The Differing Roles of Trial and Appellate Courts The differing roles of trial and appellate courts dictate the way they view cases and how they reach decisions and should also determine the way social science research shapes the law through these bodies. Federal trial courts play a largely positive role in the legal system. Trial judges are not concerned with what the law should be but, instead, what the law is and how a specific case relates to the established law. As a result, Social Facts and Social Frameworks, whose conclusions directly relate to the parties in a case, should be the primary empirical social science tools

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available to a trial judge. Social Authorities, which contain research conclusions used to reach decisions about the future shape of the law, have little value to a trial judge and should therefore play a substantially limited role in federal district courts. The duty of a trial judge should be to utilize empirical social science research that uses a methodology that appellate courts have considered and found to be valid and whose scope is limited to the facts of the case before her. On the other hand, federal appellate courts play a largely normative legal role. Appellate judges decide not only what the law is but what the law should be, using “litigation as a means of developing the law.�105 Appellate courts shape the policies and institutions that guide district courts throughout the country and, as a result, must not only make use of social research in deciding cases, but also decide the appropriate contexts in which such research can help decide future cases. This means that appellate courts must review not only the conclusions of social research from a broad range of fields, but also review the methodologies and validity of such research to guide lower courts in reviewing similar research in the future. The distinction between these two roles provides a useful starting point for streamlining the use of social science research in federal courts. At present, social science research enters federal courts haphazardly. Some major constitutional cases have seen substantial discovery and fact-finding stages in which expert testimony played a key role in establishing facial challenges to policies. In other instances, social science research does not enter the conversation until the case is heard at the appellate level, after which amicus briefs attempt to inform the court of the implications of social research for the case. By creating a better procedure for how trial courts and appellate courts distinguish their use of social science research based on how they already distinguish their handling of the law and precedent, we can better integrate this body of research into the legal process and thereby further legitimize its use.

105

Pound, supra note 20, at 514.

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I will now offer examples of how utilizing the trial–appellate court distinction will dictate the procedures and roles of each court in dealing with the Monahan and Walker’s categories for social science research. 1. Social Facts In their articulation of the Social Fact category of social science research, Monahan and Walker offered procedural recommendations that distinguished between the methodology and specific application of Social Facts and used this distinction to guide courts in determining the admissibility of such research. We can now separate the responsibility for enforcing these procedural recommendations between trial courts and appellate courts. Trial courts would concern themselves primarily with the application component of Social Facts. Trial courts are best-equipped to determine the relevance of Social Facts to the immediate parties of a specific controversy at issue before the court. Their primary function would be to review the social science research to ensure that the Social Facts were sufficiently material and probative to the facts at hand. The trial court would also ensure that such research utilizes a methodology that appellate courts have recognized as valid for the conclusions it intends to draw. These Social Facts would arrive at the court primarily as evidence offered by the parties—as is often the case in trademark suits which rely upon consumer surveys to demonstrate consumer confusion. Appellate courts, on the other hand, will limit their role in reviewing Social Facts to the methodology of such research. Appellate courts will only encounter Social Facts in the course of reviewing lower courts’ invocations of such research and will thus be tasked with reviewing trial judges’ determinations of relevance as well as reviewing the validity—and, consequently, admissibility—of applications of that methodology in Social Facts in future cases. An example of how the differing roles of the district courts and appellate courts will interact under this plan is evident in cases from mass torts

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litigation. For example, in Cimino v. Raymark Industries, Inc.,106 the district court oversaw a class-action product-liability suit in which the plaintiffs were exposed to asbestos while working various jobs at multiple times and locations. After a jury found the defendants guilty of gross negligence, the district court had to then evaluate 2,298 injury claims. To expedite this process, the court divided the plaintiffs’ damages into five categories of disease that may have resulted from exposure to the products and then randomly selected 160 sample cases to determine damages for each category. The district court would then decide the remainder of the claims by extrapolating from the verdicts in these sample cases to the circumstances of specific claimants. Later, the Fifth Circuit overturned this process, ruling that under products-liability law, causation and damages must be established as to each individual plaintiff.107 This process exemplifies the differing roles of the trial and appellate courts with respect to Social Facts. At the trial court, plaintiffs and the trial judge used statistical methods to carry out their fact-finding mission—in this case, constructing a representative sample of damages to broadly apply to a large pool of claimants. However, the appellate court retained authority over the methodology that the district court could use, finding that, as a matter of law, inferential statistics were not appropriate for evaluating damages for the pool of claimants. An area in which appellate courts have approved of empirical methodologies as part of a district court’s fact-finding process is trademark litigation. In Processed Plastic Co. v. Warner Communications,108 the Seventh Circuit approved of the use of survey research to demonstrate that a toy manufacturer caused consumer confusion among children who associated the toy with “The Dukes of Hazard” franchise. Even in trademark litigation, however, there are examples of appellate courts moderating the specific implementation of these approved empirical methods. For example, in

106

751 F. Supp. 649 (E.D. Tex. 1990), rev’d, 151 F.3d 297 (5th Cir. 1998). Id. 108 675 F.2d 852 (7th Cir. 1982). 107

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Amstar Corp. v. Domino’s Pizza, Inc.,109 the Fifth Circuit found that surveys presented to the district court were “substantially defective” and minimally probative. This ruling would then guide future district courts in ensuring that the survey research presented in trademark litigation met the standard of significance outlined by the appellate court. In sum, trial courts are the main keepers of Social Fact. Trial judges concern themselves with the application of specific methodologies, determine their relevance for a case, and utilize them to make findings of fact. Appellate courts review these findings of fact and ensure that the methodology of the Social Facts is valid and therefore admissible in future cases. 2. Social Frameworks Monahan and Walker similarly distinguished between the methodology and specific application of Social Frameworks. However, in the case of Social Frameworks, it is the conclusions of the research that would receive precedential weight.110 Trial courts will continue to concern themselves primarily with the specific application of Social Frameworks. The trial judge would be tasked with reviewing the social science research to ensure that the Social Frameworks were sufficiently material and probative to the facts at hand. However, the relevance determination will be slightly more complicated and require input from appellate courts due to the necessarily generalized nature of the research conclusions in Social Frameworks. First, A trial judge would have to ensure that the general conclusions of this research is appropriately applicable to the specific facts of the case. This task would be a cooperative one, with trial judges using prior decisions by appellate courts to guide them in making their own determinations of relevance. Second, the trial court will still have to ensure that the Social Framework research utilizes a methodology that appellate courts have recognized as valid for the 109 110

615 F.2d 252 (5th Cir. 1980). Social Frameworks, supra note 14, at 585–86.

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conclusions it intends to draw. Finally, because the conclusions of Social Frameworks will be treated similarly to legal precedent, the trial judge will have the additional task of seeking out such research to contextualize trial evidence before her when it has been established as relevant by appellate courts. In this way, Social Frameworks can, similarly to Social Facts, arrive at the court either as evidence offered by the parties or as a part of the district court’s fact-finding role. Appellate courts will have a more substantial role in dealing with Social Frameworks because the general conclusions of this class of research would have wide-ranging implications for contextualizing evidence in many future cases. As such, the appellate court’s role will continue to be to review trial judges’ determinations of relevance as well as reviewing the validity—and, consequently, admissibility—of applications of that methodology in Social Frameworks in future cases. However, the courts must also consider how these research conclusions can be applied to different fact patterns in the future and thus set out parameters and limitations for their utility to guide future trial courts. An example of Social Frameworks at work in federal courts, which this article has already covered, involves expert testimony by forensic psychologists demonstrating the limited reliability of eyewitness testimony.111 In the context of these cases, trial courts are responsible for assessing the relevance of the forensic psychologists’ testimony to the case and ensuring that the Social Frameworks they are presenting are comprised of research conclusions that have gained precedential weight following appellate court review. In the case of forensic psychology’s conclusions about eyewitness testimony, numerous appellate courts have long acknowledged the validity and materiality of these research conclusions.112

111

See infra p. 18. See Arizona v. Chapple, 135 Ariz. 281 (Ariz. 1983); Weatherred v. Texas, 975 S.W.2d 323, (Tex. Crim. App. 1998); Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003).

112

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3. Social Authority Because of their generality and typical role as the basis for new legal rules, Social Authorities have limited utility to a district court judge. Trial judges should restrict themselves to only accepting those authorities that appellate courts have previously acknowledged as illuminating scientifically valid facts or empirical conclusions. Once an appellate court has cited a Social Authority in the creation of a legal rule, they ascribe to it a precedential value that allows the trial judge to call on this research in the disposition of the controversies before her. The trial judge would still be responsible for assessing the relevance of established Social Authorities to the cases at hand, however, if a trial judge encounters new Social Authorities that have yet to gain the approval of appellate courts, they would be obligated to refuse to admit such evidence into the record. This new procedure would limit the use of Social Authorities at the trial level in favor of concentrating them among appellate courts who can, in a more unified fashion, engage in a gatekeeping role, ensuring that the Social Authorities that ultimately shape new legal rules are scientifically valid and appropriately generalizable. One acceptable use case for Social Authorities at the trial level is in a constitutional challenge to a policy that violates a rule previously created by an appellate court on the basis of social research. For example, in the years after the Supreme Court’s decision in Brown, cases were brought throughout the country against school districts that continued to segregate students by race. In this context, trial courts could appropriately accept Social Authorities that echoed the research conclusions in Brown about the harm that comes from segregation. In some of these cases, scientists testifying for the defendant schools sometimes tried to dispute the validity of the research the Court cited in footnote 11 in Brown.113 However, once the Supreme Court cited this research, they gave it precedential weight, making any district court decision challenging said research inappropriate. In response to one such ruling by a district court in Georgia, the Fifth Circuit 113

Joseph Sanders, Betty Rankin-Widgeon, Debra Kalmuss and Mark Chesler, The Relevance of “Irrelevant” Testimony: Why Lawyers Use Social Science Experts in School Desegregation Cases, 16 Law & Soc’y Rev. 403 (1982).

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noted that “no inferior federal court may refrain from acting as required by [the decision of the Supreme Court] even if such a court should conclude that the Supreme Court erred either as to its facts or as to the law.”114 Thus, the social research cited by appellate courts becomes dispositive and carries the weight of legal precedent.115 Future litigants can then cite established Social Authorities at the trial level if they believe those authorities would aid in the disposition of their case. However, if a Social Authority has not yet received the approval of an appellate court in the creation of a new legal rule, a trial court should not act as a pioneering body by applying untested research. Under this new guidance, a case like Perry v. Schwarzenegger116 should not have succeeded at the trial level. Although the research introduced at the trial level in this case set forth a persuasive argument for the unconstitutionality of same-sex marriage bans—some of which would later gain the approval of the Supreme Court—these research findings had not yet become established by the Ninth Circuit or the Supreme Court. In keeping with their role as adjudicating a case based on its relationship to the established law—and research—the district court should not be persuaded by innovative research and should leave its evaluation up to the appellate courts. B. Assessing the Research Thus far, this article has offered procedural recommendations that concentrate much of the responsibility of assessing the soundness and validity of social science research on appellate courts. Under the current state of affairs, this recommendation would likely do little to improve the current deficiencies of federal courts in assessing this research. Appellate court judges do not have some magical, innate ability to understand social research better than trial judges. In fact, there are some situations in which 114

Stell v. Savannah-Chatham County Bd. of Ed, 333 F.2d 55, 61 (5th Cir. 1964). Monahan and Walker encourage this analogy between established social research and legal precedent, arguing that “social science research, when used to create a legal rule, is more analogous to “law” than to “fact,” and hence should be treated much as courts treat legal precedent.” Social Authority, supra note 14, at 487. 116 704 F. Supp. 2d 921 (N.D. Cal. 2010). 115

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one could argue the trial judge did a much better job at understanding the empirical or technical evidence before her than did subsequent appellate courts on review.117 Therefore, in addition to modifying the procedures through which empirical social science evidence reaches federal courts, there must also be structural changes to how the appellate courts go about fulfilling their new duty of validating such research. My recommendations on this point are twofold. First, federal courts require access to a new research body that can help provide crucial information, context, and advice on the broad range of social research issues that they will encounter. Second, appellate courts should have an established set of parameters that guide their evaluation of empirical research and help determine what types of social research are appropriate for inclusion into their body of legal precedent. In the remainder of this Part, I will offer some recommendations on the implementation of such a research body and on some of the parameters that appellate courts should be aware of in their assessment of social research. 1. A Federal Judicial Research Service Numerous scholars and political commentators have argued that federal courts—the Supreme Court in particular—should have access to some type of research body that helps fact-check their decisions or enlighten them on

117

One recent example of this situation can be found in the prominent intellectual property case Oracle Am., Inc. v. Google, Inc., 750 F.39 339 (Fed. Cir. 2014), in which Oracle and Google were engaged in a dispute over whether application programming interfaces (APIs) commonly used in software development are eligible to receive copyright protection. The trial judge that heard the case in the Northern District of California was Judge William H. Alsup. Judge Alsup had prior experience programming as a hobby and specifically learned the programming language at issue in the case, Java, to more clearly understand each side’s arguments. Judge Alsup subsequently ruled in favor of Google in a decision that many experts in computer science lauded for its extensive and accurate fact-finding of the technical issues. Sarah Jeong, The Judge’s Code, The Verge (Oct. 19, 2017, 10:57 AM), http://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-william-alsupinterview-waymo-uber/ [http://perma.cc/9GF5-GK5L]. The Federal Circuit later reversed Judge Alsup’s decision, disregarding much of his technical fact-finding.

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issues outside of their professional expertise.118 I agree that such a body should exist given the continually increasing caseload and complexity of cases before federal courts. To these suggestions I wish to contribute recommendations about the composition this body, its role in judicial decision-making, and how it would interact with the procedural recommendations made in this article. Because a federal judicial research service’s purpose would be to advise judges in their capacity as “legislators” shaping judicial policy, it is useful to consider established mechanisms through which legislative bodies receive guidance on technical matters. Fortunately, in the United States Congress has a variety of sources from which it receives such information that can help inform the structure of a new body for judicial decision-making. Historically, the primary technical advisory boards to Congress have been the Office of Technology Assessment (OTA),119 the Congressional Research Service (CRS), and the National Academy of Sciences (NAS). Although the work of these research bodies overlapped significantly, they each provide useful characteristics that could form the basis of a new research service specifically suited for the work of the federal judiciary. 118

See, e.g., Sheldon Gleuck, The Social Sciences and Scientific Method in the Administration of Justice, 167 Annals Am. Acad. Pol. & Soc. Sci. 106 (1933). Gleuck suggested that: under the auspices of some such organization as an outstanding university or the American Law Institute, there might be established a clearing house . . . The goal of such an enterprise would be to keep lawmakers, law interpreters, and law reformers continuously informed of the progress of thought and experience in those fields of human endeavor with which legislators, lawyers, and judges have to deal. Id. at 115–16; see also George R. Currie, Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wis. L. Rev. 39, 49 (1960) (recommending the appointment of a “special master or an expert in a particular field of specialized knowledge to investigate certain scientific facts and report his conclusion to the court.”); Kenneth Culp Davis, Judicial, Legislative, and Administrative Lawmaking: A Proposed Research Service for the Supreme Court, 71 Minn. L. Rev. 1, 15 (1986) (recommending the creation of a “research organization outside the Court to make studies at the Court’s request.”). 119 The 104th Congress withdrew funding from the OTA in 1995 after it drew criticism from prominent Republicans who believed the agency to be unnecessary and a duplication of the work done by other governmental bodies.

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In composing a judicial research service, it suits us to look to the structure of the NAS. Congress chartered the NAS in 1863,120 charging the organization with “providing independent, objective advice to the nation on matters related to science and technology” and “provid[ing] scientific advice to the government ‘whenever called upon’ by any government department.”121 The NAS is composed of over 2,000 academics from the fields of science, engineering, and medicine who are elected to the academy based on their distinguished and continuing achievements in original research.122 Election to the NAS is considered one of the highest honors in the field of science, attracting experts at the top of their respective fields, and is thus an exemplar of a judicial research service aimed at credibly informing the courts on issues of social research. A social research variant of the NAS would be composed of experts from fields of social science such as anthropology, communication, economics, political science, psychology, and sociology among others.123 An organization composed in this way would value the academic contributions of its members who would have an intimate knowledge of the state of research, discourse, and debate within their respective fields. These experts could speak to the validity of research conclusions, inform judges about whether those conclusions are widely accepted in the field, and offer crucial context about the scope and generality with which to treat studies before the courts. In producing reports for judicial consumption, a federal judicial research service should also take cues from the CRS. CRS reports are governed by requirements for “confidentiality, timeliness, accuracy, objectivity, balance, and nonpartisanship.”124 Additionally, unlike OTA or NAS reports that are 120

An Act to Incorporate the National Academy of Sciences, 36 U.S.C. § 1503 (1998). National Academy of Sciences, http://www.nasonline.org/about-nas/ mission/ [http://perma.cc/BB6B-XTFW] (last visited Mar. 9, 2018). 122 Id. 123 This list of fields is not exhaustive but typical of the prominent fields of social research from which such a research body would pull its experts. Fields that would ultimately contribute to this body should conform to definitions of empirical social research such as those discussed earlier in this article. See infra note 6. 124 Ida A. Brudnick, Cong. Research Serv., RS33471, The Congressional Research Service and the American Legislative Process 2 (2008). 121

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often months-long endeavors, many CRS products focus on narrower questions and are designed to provide rapid responses.125 This suits the role that a research service would play for federal courts who would most often ask narrow questions concerning the validity of research evidence presented to them and would require timely responses to keep pace with their large caseloads. The three primary constituencies this federal judicial research service would serve would be: federal trial courts, federal appellate courts, and the Supreme Court. The nature of the requests this body would receive from each of these three groups would vary slightly under the procedural model described above because of their diering roles in handling the various classifications of social research. Trial courts would be concerned with ensuring that the methodologies of the Social Facts and Social Frameworks they most frequently receive were valid and consistent with the methodologies approved by appellate courts. Trial courts could refer the research they receive to this service which would then respond with a determination of whether the methodologies at issue comport with established precedent. On the other hand, appellate courts would be most concerned not with previous research methodologies they had already reviewed but instead with new methodologies and research conclusions that had not yet received judicial scrutiny. Appellate courts would receive counsel from this research service in evaluating the validity and future applicability of the methodologies in the Social Facts and Social Frameworks litigants attempt to present in lower courts. These courts would also have the added duty of tasking this research service with vetting the research conclusions of new Social Authorities. The service would oer products such as literature reviews that could inform appellate courts about the degree of consensus underlying the conclusions in the proposed Social Authorities and whether 125

Richard E. Rowberg, How Did the Reports of OTA, the Congressional Research Service, and the National Academies Differ?, LegBranch (Nov. 14, 2016), http://www.legbranch.com/theblog/2016/11/14/how-did-the-reports-of-ota-thecongressional-research-service-and-the-national-academies-differ/ [http://perma.cc/RB33-TZEQ].

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the research in question would be sufficiently generalizable to establish precedent to guide the formation of legal rules. The Supreme Court would have similar requests as lower appellate courts for the research service; however, as a court of last resort, they would likely require an extra level of rigor and increased involvement by researchers. In addition to answering individual questions about specific research before the Court, the research service should play an active role in vetting briefs by the parties to the case as well as all amici. Given the level of policy-oriented advocacy before the Court, researchers could provide an invaluable role as fact-checkers of all materials before the justices. By reviewing all facts, figures, and research conclusions, this service could also help the Court address concerns about their research deficit and improve the quality of research in its opinions.126 2. Guidelines for Gatekeeping Research A federal judicial research service can help federal courts ensure that the social science research before them is of high quality and receives appropriate scrutiny. However, the courts still require certain parameters or a framework to guide them in making decisions over whether the social science research they receive should become a basis for shaping the law. Although a research service can testify to the methodological soundness and statistical relevance of a study, it cannot make a recommendation about whether that study’s conclusions should inform new legal precedent.127 Thus, I propose a few criteria that can help courts—specifically, appellate

126

Gabrielson, supra note 2. Monahan and Walker, Social Authority, supra note 14, at 499–508, provide some recommendations about the criteria that appellate courts should use in critically evaluating social research. However, their recommendations primarily concern techniques for assessing the methodological soundness and validity of empirical social research. In my model, a federal judicial research service would aid in making such assessments and informing the courts of their conclusions. My recommendations in this section primarily concern normative considerations of the research paradigms that should undergird the social research evidence that courts use as the basis for new legal precedent. 127

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courts who are responsible for shaping legal precedent—decide whether social research should gain precedential weight. For Social Authorities, appellate courts should be attentive to the level of consensus undergirding the research conclusions presented to them. When an appellate court accepts the conclusions of a Social Authority, it grants those conclusions the power to determine the outcome of all future cases for which its conclusions are applicable.128 This is an immensely powerful tool to shape legal policy. Therefore, appellate courts should be conservative in enshrining new Social Authorities into precedent. Particularly, they should be cautious not to accept research conclusions that have not endured numerous validation studies and scrutiny by academics with expertise on the issues it addresses. In short, appellate courts should only accept new Social Authorities that have gained an academic consensus within their field. One way that the courts could ensure that the Social Authorities meet this requirement is by instructing the federal judicial research service to pay close attention to systematic reviews and metaanalyses of the relevant research and report these findings to the courts. In academic research, systematic reviews are widely accepted as the “gold standard” in synthesizing available research, and meta-analyses, specifically, provide “a powerful means of statistically combining studies to look for patterns across studies and to examine reasons for contradiction in results where they occur.”129 The conclusions in these systematic reviews and meta-analyses essentially summarize the state of research in a field and can offer conclusions that have a strong academic consensus and statistical significance. It is these conclusions, rather than new and potentially untested research results, that would be most appropriate to enshrine into legal precedent that will affect cases for decades to come. This, in turn, preserves the stability requirement of the Rule of Law by preferring well-

128

Stell v. Savannah-Chatham County Bd. of Ed, 333 F.2d 55, 61 (5th Cir. 1964). Neal Haddaway, The importance of meta-analysis and systematic review: How research legacy can be maximized through adequate reporting, LSE Impact Blog (Jan. 26, 2015), http://blogs.lse.ac.uk/impactofsocialsciences/2015/01/26/the-importance-of-metaanalysis-and-systematic-review/ [http://perma.cc/4T9L-N2XY]. 129

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established research conclusions over more volatile, cutting edge research results that have not yet demonstrated their longevity. For Social Facts and Social Frameworks, similar systematic reviews and meta-analyses that focus on the methodologies of these studies would be greatly informative to appellate courts. Methodologies that have withstood the test of time and have consistently shown to provide valid, reproducible results are ideal candidates for use in Social Facts and Social Frameworks. In addition, the courts and their researchers should pay particularly close attention to mixed-methodology studies. Mono-paradigmatic studies that base their conclusions on a single research methodology are at risk of succumbing to the biases and errors of those paradigms and methodologies. Mixed-methodology studies, on the other hand, can help protect against these biases and demonstrate the validity of their findings by showing that multiple, disparate research methodologies reach the same conclusions. Conclusion By affording “judicial cognizance”130 to social research, federal judges fundamentally change the body of the law. Today, over a century after Muller, federal judges have overseen a proliferation of significant cases resting their arguments, in part, on social research conclusions. In their limited role as policymakers, judges bear the great responsibility of ensuring that our legal institutions are shaped by only those research conclusions that best represent the current state of research and understanding. Despite the growing influence and complexity of social science research, federal courts have been unable to keep pace. This article addressed the theoretical points justifying judicial use of social science research and built upon existing scholarship to offer new procedures that courts can use to drastically improve the quality of their decisions that utilize social research conclusions. However, these recommendations are only a preliminary step. While procedures and institutions that aid judges in navigating the complexities of empirical social research are useful, they are no substitute for more fundamental reforms to legal education to better educate lawyers 130

Muller v. Oregon, 208 U.S. at 412, 420 (1908).

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in social science research and methodologies. We ask lawyers to be generalists—to apply a legal education centered around logic, reasoning, and Socratic debate to the disparate issues they are tasked with litigating. But at some point, we must add new tools to their repertoire if we want them to have the capacity to answer questions about the shape of our legal institutions. No lawyer must be a dedicated social scientist, but in an increasingly technocratic society, they must at the very least be able to speak the same language as a social scientist. Slowly, we can construct a new generation of lawyers and, eventually, judges that will be better equipped to handle the challenges that ever more complicated technical and policy issues of the future will bring.

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UCLA UNDERGRADUATE LAW JOURNAL Jared Kelly*

Preserving Discourse at Public Universities: The Implementation of Campus Speech Codes and the Resulting First Amendment Conflict ABSTRACT. Public universities, as agents of the state, are beholden to principles of the Constitution. In an effort to combat offensive speech and to establish a learning environment free from discrimination, some universities have passed speech codes which often conflict with the First Amendment. Such speech codes interfere with the “marketplace of ideas,” a notion established by Justice Oliver Wendell Holmes Jr. in his dissent in Abrams v. United States. The premise of this marketplace is simple: any idea may be true, and therefore the suppression of ideas one finds disagreeable can inadvertently lead to the suppression of truth. This article examines the three common justifications for campus speech bans: group libel, fighting words, and the Title VII hostile environment doctrine. I highlight the breadth of case law that has largely invalidated such approaches and argue that, to mitigate offensive speech, we must rely on the marketplace of ideas to rid offensive ideas from public discourse. I conclude by forwarding a three-pronged approach that universities can utilize in order to stand against offensive speech without infringing upon First Amendment principles.

*

Jared Kelly is a recent graduate of the University of California, Berkeley where he studied political science and geography. Jared's academic interests include just war theory, game theory, foreign interventions in civil conflicts, and development studies. Jared plans on attending law school in the future, and later plans on pursuing a career in diplomacy or international law.

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“A belief may be pernicious — the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.” - Justice Frank Hoover Easterbrook, 19851

Introduction In 2015, Kutztown University, a public university in Pennsylvania, prohibited the display of symbols deemed distasteful or demeaning within residence halls, suites, or student dorms.2 Other public universities have also found unique ways to cast restrictions on free speech; in 2012, the University of Cincinnati confined all “demonstrations, pickets, and rallies” to a designated “Free Speech Area”—which totaled 0.1% of the university campus and could only be occupied with prior registration. There is little doubt that campus speech restrictions are created with good intentions, generally seeking to protect students—especially those of historically vilified minority groups—from bigoted speech. Issues emerge with this approach, however, because public universities serve as agents of the state and thus do not have the authority to enjoin the First Amendment. In this article, I argue that, while freedom of expression at public universities should not be restricted beyond conventional First Amendment exceptions, universities can constrain conduct and ensure student safety without contravening First Amendment principles. In Part I, I explore the history of speech censorship at public universities and the importance of speech in a college education. In Part II, I examine the justifications used for campus speech bans and the underlying case law. In Part III, I demonstrate how these bans rarely meet the goals they set out to achieve. Finally, in Part IV, I

1

American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 328 (7th Cir. 1985). Eugene Volokoh, Kutztown University lifting unconstitutional ban on Confederate flag, THE WASHINGTON POST. (Dec. 15, 2015), https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/12/15/kutztown-university-lifting-unconstitutional-ban-onconfederate-flag/?utm_term=.6da63f2f8f30. 2

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propose methods that universities may use to combat bigoted speech without encroaching upon the First Amendment. Although the First Amendment plainly states that Congress shall pass no laws abridging the exercise of free speech,3 the Supreme Court has maintained that the freedom of speech is not absolute. The American legal system largely follows the restriction suggested by John Stuart Mill in On Liberty—“to prevent injury unto others.”4 The Supreme Court’s interpretation of the First Amendment has limited a variety of speech, including obscenity,5 defamation,6 fraud,7 fighting words,8 true threats,9 incitement,10 and speech vital to criminal conduct.11 I. Speech Abridgement in the Marketplace of Ideas Anthony Lewis, a legal journalist and historian, argues that constraints on the First Amendment generally emerge in times of fear and conflict.12 The first limits on speech came with the Alien and Sedition Acts of 1798, which were passed when war with France was believed to be imminent. This trend can be observed throughout history; federal and state authorities regulated speech, and the judiciary often upheld such laws. The “clear and present danger” test was established during the First World War,13 the “fighting words” doctrine during the Second World War,14 “group

3

U. S. Const. amend. I. JOHN STUART MILL, ON LIBERTY 22 (1869). 5 Roth v. United States, 354 U.S. 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). 6 Beauharnais v. Illinois, 343 U.S. 254-255, 72 S.Ct. 725, 96 L.Ed. 919 (1952). 7 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). 8 Chaplinsky v. New Hampshire, 315 U.S. 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). 9 Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). 10 Brandenburg v. Ohio, 395 U.S. 447-449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). 11 Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949). 12 ANTHONY LEWIS, FREEDOM FOR THE THOUGHT THAT WE HATE: A BIOGRAPHY OF THE FIRST AMENDMENT 106-109 (2007). 13 Schenck v. United States, 249 U.S. 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919). 14 Chaplinsky, 315 U.S. (1942) at 1021. 4

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defamation” during the Korean War,15 and both “true threats”16 and “imminent and lawless action” during the Vietnam War.17Frederick Schauer, of the University of Virginia, argues that Americans are more likely to consent to the suppression of nonconformist opinions and the limitation of civil liberties in periods of conflict as a response to uncertainty.18 Fear, however, is a poor basis for public policy—and it should not justify restrictions on speech. In his dissent in Korematsu v. United States,19 Justice Robert Jackson noted that the allowing the restriction of civil liberties in periods marked by emergency or fear created a “principle [which] lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”20 In his dissent in Abrams v. United States,21 Justice Oliver Wendell Holmes Jr. introduced the First Amendment concept of the “marketplace of ideals”. The marketplace, Holmes argued, would grant unfettered access to speech and, as a result, society would choose to accept or reject different ideas. In this marketplace, open and diverse ideas are able to flourish, and be refined—including potentially malicious beliefs, like hate and bigotry. Competition can result in the culling of poor ideas or the prevailing of maleficent ones, but individuals retain the right to challenge ideas they find disagreeable without the fear of government retribution. Public universities should serve as a primary forum for this marketplace of ideals. Justice Felix Frankfurter, concurring with the majority in Sweezy v. New Hampshire, argued that public institutions of higher education should be characterized by their reign of free inquiry and freedom from manipulation by sectional interests.22 However, it appears that these institutions are not immune to the aforementioned impulse of fear—which 15

Beauharnais, 343 U.S (1952). Watts v. United States, 394 U.S. 708, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). 17 Giboney, 336 U.S. (1949). 18 Frederick Schauer, Fear, risk and the first amendment: Unraveling the chilling effect, 58 BUL REV, 685 (1978). 19 Korematsu v. United States, 246 U.S. 323, (1944). 20 See Id. 21 Abrams v. United States, 250 U.S. 630, 40 S. Ct. 17, 63 L. Ed. 1173 (1919). 22 Sweezy v. New Hampshire, 354 U.S. 262, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957). 16

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can result in speech restrictions. Generally, universities argue that speech limitation is necessary to protect historically marginalized groups, to promote safety, and to prevent the so-called “heckler’s veto”. Although, this limitation poses a dangerous threat to academic freedom. In The Beginning of Infinity, Oxford physicist David Deutsch contends that the principle of conjecture and refutation is the only axiom through which knowledge can be gained. He argues that this occurs because humans learn by conceiving ideas regarding the nature of their reality and testing against them, jettisoning mistaken concepts and retaining ones that appear true.23 This process of conjecture necessitates free expression—or, in other words, Justice Holmes’ “marketplace of ideals.” The Supreme Court has recognized the importance of free speech on campuses and has a strong body of casework from 1957 to 1981 protecting the freedom of speech at universities.24 The Supreme Court has held that freedom is a special concern of the First Amendment and would “not tolerate laws that cast a pall of orthodoxy over the classroom.”25 The Court even went so far as to declare that the protection of speech on American university campuses was more vital than in any other locale.26 Perhaps the strongest defense of free speech at universities came with Chief Justice Earl Warren’s majority opinion in Sweezy v. New Hampshire, where he warned that the imposition of intellectual constraints on universities could be seriously damaging: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”27 It is important to note that the term “hate speech” is inexact and elastic. In this article, offensive and bigoted speech will include both insulting speech generally considered distasteful (xenophobic, racist, sexist, 23

DAVID DEUTSCH, THE BEGINNING OF INFINITY 26 (2011). Sweezy, 354 U.S. at 234,; See also Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); Keyishian v. Board of Regents, State Univ. of N.Y., 385 U.S. 589 (1967); Healy v. James, 408 U.S. 169, 180 (1972); and Widmar v. Vincent, 454 U.S. 263 (1981). 25 Keyishian, 385 U.S. at 603. 26 Shelton, 364 U.S. at 487; See also Healy, 408 U.S. at 180. 27 Sweezy, 354 U.S. at 250. 24

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homophobic, etc.) and speech that is unlawful in certain jurisdictions but is nonetheless lawful in the United States (such as Holocaust denial). Speech that is considered unlawful under the aforementioned First Amendment exceptions is not included. Despite the precedent that had been established against speech restrictions at public universities, the late 1980s saw universities begin to adopt codes targeting offensive speech. Perhaps the most notable example of a university speech code was the University of Michigan’s (UM) 1988 policy adopted following several highly publicized instances of bigotry on campus. This code precluded any speech that could victimize or stigmatize “an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status”.28 A biopsychology graduate student challenged the ordinance, arguing it would serve as a barrier to legitimate academic inquiry. He contended that the code would prevent him from continuing his research supporting that gender differences were biologically determined—an unpopular view to hold at UM. In the ensuing case, Doe v. University of Michigan, a federal district court struck down the code on the basis of vagueness and overbreadth. While the court was sympathetic to the University’s obligation to create an environment providing equal educational opportunities for all students, it found that UM could not do so at the expense of free speech. The court concluded that the policy violated a well-articulated right to speech established by the Supreme Court which prohibited overbroad speech restrictions.29 The court also determined that the policy was unduly ambiguous, writing that “The terms of the Policy were so vague that its enforcement would violate the due process clause.”30 The vagueness of the policy would allow officials to arbitrarily enforce it against speech they disagreed with, which would violate due process rights leading to a potential chilling effect of constitutionally 28

Doe v. University of Michigan, 721 F. Supp. 852 865 (E.D. Mich. 1989). See generally 371 U.S. 433 (1963); 405 U.S. 521-522 (1972); 410 U.S. 667 (1973); 411 U.S. 611(1973); 461 U.S. 359 (1983) Supra at note 8; 482 U.S. 458-60 (1985); 415 U.S. 130 (1974); and 491 U.S. 397 (1989). 30 Doe, 721 F. Supp. at 867. 29

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protected speech that is both real and substantial.31 The acceptability of such statues that are overbroad and unduly vague would prevent the speech which is “unseemly or offensive” in a jurisdiction where free speech is considered fundamentally important.32 II. Common Foundations Behind Campus Speech Codes Perhaps the strongest support for campus speech bans is found in Mari Matsuda’s article Public Response to Racist Speech published in the Michigan Law Review.33 Matsuda contends that campus hate speech codes are necessary to protect students thrust into an unfamiliar environment, often during their first extended stay away from home. These students, she argues, are vulnerable—and rely on the university to foster a sense of community and help them navigate their new unfamiliar world.34 She asserts that harmful speech in the university environment is more damaging than harmful speech in society at large, because students are in a delicate stage and could be adversely affected by offensive speech and may carry the scars of psychological injury the rest of their lives.35 Matsuda is not alone in her support of campus speech codes. Arguments for the regulation of hate speech often rest on three primary legal justifications:36 first, that the hostile environment doctrine inherent in Title VII of the Civil Rights Act of 1964 (amended in 1991) protects employees from discrimination and a hostile environment on the basis of race, color, sex, religion, and national origin.37 Second, that hate speech is used with the intent to humiliate, degrade, injure, and incite violence; thus, the speech falls under the “fighting words” doctrine and can be legally be restricted. Finally, some argue that hate speech, when directed toward a specific group 31

Id. at 866. Id. at 863. 33 Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH L. REV. 2320-2381 (1989). 34 Id. at 2370. 35 Id. Supra note 84, at 2336. 36 Id. Supra note 89 at 2338. 37 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. 32

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of people, qualifies as group libel and is thus not protected under the First Amendment. A. Title VII and the Hostile Environment Doctrine Title VII of the Civil Rights Act guarantees the right to equal opportunity in employment irrespective of national origin, sex, race, class, or creed. Some draw parallels between interactions in workplaces and in universities, and argue that students are agents of the university as employees are agents of their employer. Mary Ellen Gale, of Whitter Law School, compares a university to a company town where students must eat, live, and work successfully in order to not be denied tangible future benefits—just like company towns, where employees must do the same. Gale argues that most arenas of campuses are analogous to a workplace rather than a public forum, so prejudiced speech can be regulated.38 Companies have been held to Title VII hostile environment regulations following the Supreme Court case of Meritor Savings Bank, FSB v. Vinson.39 In Meritor, the court explicitly endorsed the hostile environment doctrine allowing employees to file complaints on the basis of the creation of a hostile environment under Title VII. Meritor did not explicitly apply Title VII hostile working environment regulations to universities, but some have argued that universities are mandated to comply with Title VII protections as set forth in Meritor. John Shapiro, writing in the Minnesota Law Review, highlights the similarities between Title VII and Title IX of the Education Amendments of 1972.40 Title IX has similar non-discriminatory language to prevent the discrimination on the basis of sex in the participation in educational activities. In Shapiro’s article, he points to the case of Lipsett v. University of Puerto Rico,41 where a student successfully argued that her university created a hostile learning environment under the pretenses of 38

Mary Ellen Gale, Reimagining the First Amendment: Racist Speech and Equal Liberty, 65 John's L. Rev. 174 (1991). 39 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). 40 John T. Shapiro, The Call for Campus Conduct Policies: Censorship or Constitutionality Permissible Limitations on Speech, 75 Minn. L. Rev. 201, 238 (1990). 41 Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

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both Title VII and IX. The apparent interchangeability of Title VII claims in Title IX cases has led universities to claim the authority to restrict speech to prevent a hostile environment under Title VII pretenses.42 The most serious issue with applying Title VII standards to universities is the application of the “agent” label to students. Students are not generally considered agents of the university. In Lipsett, the case that Shapiro cites, the graduate student was successful in arguing that her university failed to protect her from a hostile environment under Title VII and IX. However, damages were awarded as a consequence of her status as an employee of the university’s clinical residency program; not in her role as a student. There is one notable case where students have been considered agents of the university: Levin v. Harleston.43 In Levin, it was found that the City College of New York had a demonstrated desire to remove tenured professor Michael Levin, and purposefully allowed for student disruptions. In this case, the university tolerated a hostile environment for Levin and thus neglected his Title VII rights as an employee—in other words, the students were considered to be agents of the university as it pertained to Levin’s Title VII rights. This agency, however, is notably distinct from the one that some writers apply to students: the fact that employers need to protect their employees is well established; the link to that protection being given to students is much less clear. Indeed, the application of Title VII hostile environment doctrine to justify university speech codes was largely invalidated with UWM Post v. Board of Regents of University of Wisconsin.44 The University of Wisconsin had created a speech code on Title VII grounds, arguing students are agents of the university. Judge Robert Warren asserted in his decision that “Title VII addresses employment, not educational, settings.”45 As a result, the UWM-Post decision explicitly rejected a university’s application of agency standards under Meritor to students. Furthermore, Judge Warren pointed out even if Title VII were 42

Supra note 28. See also, Lipsett analysis present in Supra notes 110-114, at 225-226. Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992). 44 UWM Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991). 45 Id. at1177. 43

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applicable to students, a federal statue cannot supersede the constitutional protections of the First Amendment,46 which raises questions about how far Meritor-inspired Title VII-based speech codes could go even if agency could be expanded to students. B. A Well Noted First Amendment Exception: The Fighting Words Doctrine The so-called “fighting words” doctrine, well established in case law, has often been used to justify campus speech codes. In recent times, however, courts have begun to move away from it. The doctrine emerged from the Supreme Court’s Chaplinsky v. New Hampshire47 decision, where the Court held that words which "inflict injury or tend to incite an immediate breach of the peace"48 could be legally restrained under the First Amendment. Advocates of campus speech codes highlight the fact that several forms of offensive speech, notably epithets and slurs, are often used with malicious intent and are susceptible to generating physical retaliation and a breach of the peace—allowing such words to be permissibly constituted as fighting words.49 Kent Greenawalt, a First Amendment specialist at Columbia, is largely opposed to university speech codes. However, he supports codes that are based on the fighting words doctrine. Greenawalt argues that universities have a strong interest in assuring decent conditions for student learning and living – and thus should prohibit these words.50 Advocates of speech codes crafted on this basis contend that universities are justified in restricting fighting speech that is used to deny students equal education opportunities. While the Chaplinsky decision still stands, courts have distanced themselves from the fighting words doctrine—even in cases where the 46

Id. Chaplinsky, 315 U.S. at 568. 48 Id. at 572. 49 Anne Flahvin, Can Legislation Prohibiting Hate Speech Be Justified in Light of Free Speech Principles, 18 U.N.S.W.L.J. 327, 340 (1995), Supra note 87 at 339. 50 Kent Greenawalt, Insults and Epithets: Are They Protected Speech, 42 Rutgers L. Rev. 287, 306-07 (1990). 47

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speech was clearly intended to inflict injury and/or incite a breach of peace. What constitutes fighting words has been narrowed to epithets exchanged face to face, likely to provoke an immediate breach of peace from the “ordinary citizen”.51 However, even speech that may compel violence from the average listener may not always be restricted under the fighting words doctrine: both Terminiello v. Chicago and Brandenburg v. Ohio saw highly offensive public speech52 protected on First Amendment grounds. Recent case law has significantly narrowed the original fighting words doctrine established under Chaplinsky. The Supreme Court has overturned every fighting words conviction since Chaplinsky.53 The progressive narrowing of the doctrine has led Nadine Strossen, former president of the ACLU, along with a handful of constitutional scholars54 to argue the doctrine may no longer be considered “good law”.55 Strossen contends that the remaining prong of the fighting words doctrine—which is to suppress speech that might drive an ordinary person to violence—justifies the usage of violence to silent speech that someone may find offensive. This, in effect, results in a Court-sanctioned endorsement of the heckler’s veto. Attempts made by universities to regulate indecent or offensive language under the fighting words doctrine, meanwhile, have faced difficulty in court. In Dambrot v. Central Michigan University, a federal court struck down Central Michigan University’s harassment policy for vagueness, finding that it was based on an improper prohibition against fighting words.56 In Papish 51

Cohen v. California, 403 U.S. 19, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971). (Eliminated Chaplinsky prong of injurious speech [although injurious speech can still be prosecuted under other doctrines], required fighting words be exchanged face to face); Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972). (Limited to only what would constitute an immediate breach of peace). Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303 (1973); see also Eaton v. Tulsa, 415 U.S. 697, 94 S. Ct. 1228, 39 L. Ed. 2d 693 (1974).- (limited exception to only words that compel the ordinary law abiding citizen to violence) 52 Terminiello v. Chicago, 337 U.S. 17-20, 69 S. Ct. 894, 93 L. Ed. 1131 (1949); Brandenburg v. Ohio, 395 U.S. 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). 53 Id. Supra note 127 at 510. 54 Nadine Strossen. Regulating Racist Speech on Campus: A Modest Proposal? 3 DUKE L. J. 484 573 (1990) 55 Id. at 508. 56 Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993).

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v. Board of Curators of the University of Missouri, a graduate student challenged her expulsion from the University following the distributing of a student newspaper portraying a police officer engaging in sexual intercourse with the Statue of Liberty with the caption “Motherfucker Acquitted”.57 Justice Warren Burger’s dissent contended that the expression was language which could be legally restrained under Chaplinsky.58 The majority, disagreed, finding that the expression did not qualify as “fighting words” and that the expulsion occurred because the institution disagreed with the newspaper’s content. Following these failures, campuses have begun to move away from speech restriction models established on the fighting words doctrine; some, such as the University of Texas at Austin, have explicitly declined to tie their racial harassment policies to the fighting words doctrine with the belief that such rules would not be legally defensible. The University of Texas citied the failure of Doe v. University of Michigan, where the code in question was partially based on the doctrine.59 Perhaps the most significant defeat of a speech code based on the fighting words doctrine is found in the California case Corry v. Stanford University.60 It must be noted that Stanford is a private institution. Under normal circumstances, then, it would not be bound by First Amendment principles. California’s Leonard Law,61 however, extends First Amendment protections to students at private postsecondary institutions. Stanford’s code had been narrowly construed by Stanford Law professor Thomas C. Grey in a bid to avoid the issues that the University of Wisconsin, Central Michigan University, and others had run into previously. The Stanford speech code, which only barred fighting words—notably, the expression of contempt and hate towards minority groups—was expected to be legally

57

Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667, 93 S. Ct. 1197, 35 L. Ed. 2d 618 (1973). 58 Id. at 676. 59 Id. Supra Note 115 at 508. 60 Robert J. Corry, et al. v. The Leland Stanford Junior University, et al., No. 740309 (Cal. Super. Ct. 1995) 61 Ca.Educ. Code § 94367 (1992).

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defensible in court.62 Plaintiffs brought suit against the University on the grounds that the code damaged the quality of education at Stanford by limiting open discussion of important issues. Despite the code’s limited purview, Judge Peter Stone concluded that the code was unconstitutional and failed to meet the fighting words doctrine. Later decisions, notably Bair v. Shippensburg University,63 saw a district court rule that campus codes that seek only to ban fighting words do not pass constitutional muster.64 It is thus difficult to envision a code in the modern era which would be found to be Chaplinksy-compliant; there appears to be little will on behalf of the courts to extend the fighting words doctrine to public educational institutions. C. Crowd Defamation: The Group Libel Model The third common justification for campus speech bans is the group libel model. The group libel doctrine emerged from the Supreme Court’s decision in Beauharnais v. Illinois.65 The defendant, Joseph Beauharnais, had violated § 224a of the Illinois Criminal Code which made it illegal to publish lithographs, films, plays, or sketches which cast a citizen’s class, race, color, creed, or religion in a negative light.66 The Beauharnais Court, recognizing that if the speech in question were directed toward an individual it would be considered libelous, extended this logic to prohibit similar speech towards groups. The Court thus established group libel as a category unworthy of First Amendment protection and found that Beauharnais’ speech was indeed libelous.67 Richard Delgado, of the University Alabama School of Law, argues that group libel does not serve any First Amendment purposes – noting that it contributes little to discourse on policy matters or self-realization, and that 62

Associated Press, Court Overturns Stanford University Code Barring Bigoted Speech, THE NEW YORK TIMES (March 1, 1995), http://www.nytimes.com/1995/03/01/us/courtoverturns-stanford-university-code-barring-bigoted-speech.html. 63 Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003). 64 Id. at 372. 65 Beauharnais 343 U.S. at 250. 66 Id. at 251. 67 Id. at 259 & 261.

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it does not lead to the discovery of truth.68 Furthermore, offensive statements, like those used to defame groups, have a high impact on their listeners because their primary goal is “to terrorize, wound, humiliate, and degrade.”69 Thus, the argument goes, this low-value, high-impact speech can be legally constrained by the courts. Historically, the courts have been willing to uphold speech restrictions when a compelling need exists (criminal threats, libel, obscenity, hostile environment harassment, perjury, fraud, copyrighted speech, and ‘patently offensive’ remarks to a captive audience,70 among others.) Delgado argues that there is a compelling reason to restrict group libel and that the Beauharnais decision makes doing so a legitimate action. Universities seeking to implement bans may make a similar argument: that it is right, and perhaps even their obligation, to restrict this speech. Furthermore, since the group libel doctrine of Beauharnais has never been overturned, it serves as precedent for universities seeking legal backing for their policies. The applicability of Beauharnais, however, is questionable. The Court’s interpretation of the issues raised in the case appears to have been ad hoc. The Court applied a rational basis test to the statue in question, and rather than make a conclusory statement, as is typical with rational basis scrutiny, the Court cited violent racial tension in Illinois to allow leeway for the state to experiment with policies to abate these tensions.71 The Court believed that Beauharnais' speech, which it presumed to be libelous, would cause a breach of the peace. This reasoning was unique; in a later case with similar circumstances, Collin v. Smith,72 the Seventh Circuit questioned the viability of the notion that group libel is not protected following the ruling in New York Times Company v. Sullivan73 that determined that those who brought 68

Richard Delgado. Campus antiracism rules: Constitutional narratives in collision, 85 NW. UL REV. 343, 378-79 (1990). 69 MATSUDA, MARI J., CHARLES R. LAWRENCE, RICHARD DELGADO, AND KIMBERLÈ WILLIAMS CRENSHAW. WORDS THAT WOUND 1 (1993). 70 Richard Delgado; Jean Stefancic, Four Observations about Hate Speech, 44 WAKE FOREST L. REV. 353, 370 (2009), See Supra note 102, at 367. 71 Beauharnais, 343 U.S at 259-62. 72 Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). 73 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).

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suit for libel must prove defamatory statements were directed at an individual personally rather than directed at a unit or group.74 As a result, in Collin, the Seventh Circuit rejected the notion group libel could be regulated without regarding its likelihood to incite violence. Included within the Colin opinion was an acknowledgement that the Supreme Court would likely not come to make a similar decision to the one that it reached in Beauharnais in current circumstances.75 The Supreme Court never ruled on Colin; it denied certiorari, and Beauharnais remains standing, although in the 1990 case of Milkovich v. Lorain Journal Co.,76 the Court held that statements which defame groups often contain matters of public importance and ought to be protected—further harming the future applicability of Beauharnais to other cases,77 including campus speech bans. Applications of the group libel model face numerous challenges. The Third Circuit has found that university policies which restrict speech on the basis of potential psychological harms are untenable, as the measurement of distress resulting from speech is “entirely subjective”.78 Meanwhile, more recent case law has bestowed protections to offensive speech as observed in in Brandenburg v. Ohio and Terminiello v. Chicago.79 Strossen, the former ACLU president, argues that a significant obstacle in the use of group libel is in its efficacy; concerns shared by Justice Felix Frankfurter, who wrote the narrow majority opinion in Beauharnais.80 Cases of libel and defamation rest on the determination of the falsity of statements. In The New York Times Company v. Sullivan, the Court concluded that statements that could not be proven false could not be found defamatory. 81 It would be difficult to prove utterances regarding the generic tendencies of a diverse group as false, 74

GATES JR, HENRY LOUIS, ANTHONY P. GRIFFIN, DONALD E. LIVELY, AND NADINE STROSSEN. SPEAKING OF RACE, SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND CIVIL LIBERTIES. (1996) Supra note 65 at 201. 75 578 F.2d 1218 (7th Cir. 1978). 76 Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). 77 See Supra note 53 at 518. 78 McCauley v. University of the Virgin Islands, 618 F.3d 250 (3d Cir. 2010). 79 See Supra note 52. 80 Beauharnais, 343 U.S at 267. 81 New York Times, 376 U.S. at 266-267.

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as the statements would likely be perceived by the average person as opinion. Chief Justice Rehnquist, writing the majority opinion for Hustler Magazine, Inc. v. Falwell, argued that outrageous statements are unlikely to be interpreted by individuals as libel as such statements cannot “reasonably be understood as describing actual facts".82 As a result, such speech is permissible, regardless if it is offensive; and these characterizations thus receive full First Amendment protections, in line with the opinion privilege. In his Beauharnais dissent, Justice Hugo Black argued that group libel could act as a double-edged sword that cuts both ways. Just as Beauharnais affirmed prosecution of anti-egalitarians who advocated for segregation, the precedent could be applied to target egalitarians who advocated for integration.83 It is important to note that popular opinion is not static. What is now considered acceptable may not be so in the future (or vice-versa). By definition, a speech ban stops the exchange of ideas. Those ideas may be reprehensible, but there is a chance that they may not be. In those cases, however, students are stopped from discussing the issue. This is the heart of the “marketplace of ideas” argument—that the freedom of expression allows for ideas to develop over time. Society as a whole will reject objectionable speech, but it must be able to hear it and discuss it to do so. The group libel model, as construed under Beauharnais, would eliminate a whole swath of speech from a university’s lexicon. D. Police Department of Chicago v. Mosely, and the Content Neutrality Requirement By definition, speech codes limit content—the decision regarding what to include and what to leave out lies with the university in question. Generally, this is content that the institution deems distasteful or otherwise objectionable, including xenophobic, racist, homophobic, classist, and sexist speech. In Police Department of Chicago v. Mosely, the Supreme Court established a constitutional requirement for content neutrality in cases involving speech limitation. In other words, the government is not free to 82 83

Hustler Magazine, Inc. v. Falwell, 485 U.S. 49, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). Beauharnais, 343 U.S. at 274.

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grant a forum to individuals whose views it finds acceptable and deny it to those who retain more controversial views.84 Justice O’Connor, in the majority opinion of Simon & Schuster, Inc. v. Members of NY State Crime Victims Bd., argued that this would prevent an authority from “effectively drive[ing] certain ideas or viewpoints from the marketplace”.85 College speech codes that are not-content neutral would likely a fail rational basis test, much less strict scrutiny, under the First Amendment. Historically, bans that are not content neutral have a hard time succeeding. This is highlighted in both Tinker v. Des Moines86 and Palmer v. Waxahachie Independent School District,87 which dealt with public K-12 school limits on student speech. In Tinker, the Supreme Court found that the suspension of three students for wearing black armbands as a sign of protest against the Vietnam War violated their First Amendment rights, in part because other political speech—such as pins urging votes for Humphrey or Nixon—flourished at the school. In Palmer, however, a high school policy which banned all t-shirts with text that was not connected to school spirit was determined acceptable by a federal court. The fundamental difference between these cases is that the policy in Palmer was permissible because it was content neutral; Tinker, however, targeted specific content the school disagreed with. In Doe v. University of Michigan, Judge Cohn noted that a university could not establish an anti-discrimination policy that explicitly targets certain speech because of the message it conveys.88 Content neutral speech prohibitions are more likely to withstand greater scrutiny as noted in Justice Sandra Day O’Connor’s majority opinion in Virginia v. Black.89 Here, the Court found that a Virginia statute which banned cross burning was unconstitutional as it violated content neutrality 84 Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972), at 59. 85 Simon & Schuster, Inc. v. Members of NY State Crime Victims Bd., 502 U.S. 116 S. Ct. 501, 116 L. Ed. 2d 476 (1991). 86 Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). 87 Palmer v. Waxahachie Independent School District, No. 08-10903 (5th Cir. Aug. 13, 2009). 88 Doe, 721 F. Supp. at 863. 89 Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).

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principles; Justice O’Connor noted that a statue banning all intimidating actions, rather than just cross burning, would have likely been determined constitutional.90 It is difficult, however, for a university to apply Palmer’s contentneutrality principles to a proposed speech restriction. Because elementary schools deal with minors, they act in loco parentis over their students. In order for a speech code to pass scrutiny, it would have to ban a significant spread of expression. This action would likely fail at the university level—as the Court has maintained that speech is fundamental on university campuses, and a content neutral restriction on speech could be seen as an intellectual “straight jacket”91 which the Court has declared impermissible for universities. It is also important to note that content specific speech bans are inherently subjective. Many university speech codes prohibit content that society generally finds unfavorable. Content-based restrictions, like those at Kutztown University, may explicitly prohibit the display of swastikas and confederate flags but allow for the display of equally objectionable symbols representing the USSR and Khmer Rouge. This is inherently problematic. Justice Potter’s dissent in Young v. American Mini Theatres, Inc., noted that content-based prohibitions are not permissible, as free expression is neither defined nor circumscribed by popular opinion.92 If content-based suppression were permissible under the guise of popular opinion, unpopular ideas could be suppressed by majoritarian dominance— rendering social and political minorities voiceless in the marketplace. Alan Charles Kors, a First Amendment historian at the University of Pennsylvania, argues that content specific speech codes carry the danger of merely allowing a university to pursue some social agenda by silencing opponents rather than furthering social and academic exchanges in the marketplace of ideas.93 Kors’ concerns are not merely hypothetical: there

90

Id. at 386. Sweezy, 354 U.S. at 354. 92 Young v. American Mini Theatres, Inc., 427 U.S. 86 S. Ct. 2440, 49 L. Ed. 2d 310 (1976). 93 Alan Charles Kors. Harassment Policies in the University 28 SOCIETY 22 26-7 (1991). 91

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are clear examples of schools targeting students for holding opinions deemed unpopular.94 95 III. The Misguided Goals and Potential Cost of Campus Speech Censorship Historically, students fighting for their rights have relied on First Amendment protections. Unfettered speech is perhaps most important for vulnerable groups. This is easy to observe in the modern era: ideas considered highly offensive only a few decades ago—like the rights of gay couples—have become commonplace. This is an example of the marketplace of ideals at work. The banning of unpopular speech runs the risk of tempering ideas which may well have merit; at the very least, allowing universities to close the door on speech which they themselves deem objectionable creates worrying precedent and a slippery slope. A. The Libertarian Critique Writing in the California Law Review, Ragesh Tangri and David McGowan’s Libertarian Critique of University Restrictions of Offensive Speech takes the view that allowing offensive ideas to see daylight in the marketplace of ideas has the long-term effect of mitigating against their negative consequences. The view does not hold that all speech is good per se, but rather that, if an individual believes in what is widely considered a falsity, they will suffer for their mistake —whereas if an institution makes the same error hundreds or thousands can suffer from the effects of muted discourse.96 Tangri and McGowan reject the notion that university students are impressionable, thin-skinned individuals who are to intellectually naive to understand that the university must retain a neutral stance between opposing viewpoints. They argue that the frameworks established to limit 94

Kathryn Marie Dessayer; Arthur J. Burke, Leaving Them Speechless: A Critique of Speech Restrictions on Campus, 14 HARV. J. L. & PUB. POL'Y 565, 580 (1991). 95 David F. McGowan; Ragesh K. Tangri, A Libertarian Critique of University Restrictions of Offensive Speech, 79 CAL. L. REV. 825, 907 (1991). 96 Id. at 838.

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offensive speech on campuses does not protect the marketplace from the influence of a wide variety of pernicious ideologies; instead, individuals themselves are better barometers to see and combat bad ideas. Indeed, even if the assumptions of campus speech suppression advocates—namely, that students need protecting—are taken as correct, resulting policies would still be difficult to implement. In McCauley v. University of the Virgin Islands, the Third Circuit held that that universities cannot censor the speech of students on the basis of protecting a listener, as to prevent an endorsement of the heckler’s veto doctrine.97 B. Costs The logic behind speech bans rests on the assumption that some ideas are so lacking in value and patently false that they should not be permissible. This idea runs counter to Justice Holmes’ premise that any idea may be true and thus the suppression of ideas could lead to the suppression of truth.98 This premise is still recognized in current First Amendment jurisprudence and was reiterated in the majority opinion by Justice Lewis Powell in Gertz v. Robert Welch, Inc.: “under the First Amendment there is no such thing as a false idea”. 99 If the assumption that individuals are able to uncover truth from speech is correct, then speech serves as necessary prerequisite for democratic self-governance. This occurs because free expression will allow citizens to discover truth and attain the necessary information to make informed judgments on which a democratic self-governing society is reliant.100 Robert Bork, a former Solicitor General of the United States, wrote that "the entire structure of the Constitution creates a representative democracy, a form of government that would be meaningless without freedom to discuss the government and its policies."101 As a result, current First Amendment precedent views speech as a core aspect, fundamental to 97

McCauley v. University of the Virgin Islands, 618 F.3d 248, 250 (3d Cir. 2010). Supra see note 21, at 630. 99 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 392 (1974). 100 Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. RNV. 119, 145 (1989). 101 Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 23 (1971). 98

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democratic self-governance and follows an absolute protection approach. In this approach, the government rejects notions that restrictions on speech— notably political speech—are acceptable, as they may limit the free flow of information, effectively limit the dissemination of truths and undermine the integrity of the public sphere. Theodore Simon, writing in the Indiana Law Review, argues that speech restriction codes will never achieve their aims of creating an equitable environment for all.102 It is important to understand that these policies come at significant cost. Censorship codes shift focus away from the actual issue— the fact that groups are being targeted—and instead emphasize a focus on legalistic tendencies. Considerable time and energy are invested into drafting such codes and defending them in the face of constitutional entanglements. Simon envisions a scenario which is likely to emerge from the institution of campus speech codes: the divisiveness caused by debate over hate speech codes will make campuses more reluctant to implement the necessary structural changes that mitigate against hate. In turn, this will result in a pyrrhic victory where more individuals will exercise care in their expression—but the structural features of discrimination would remain intact.103 Some university administrators have come around to this view: Roger Howard, a dean at the University of Wisconsin, abandoned UW’s speech codes and argued that they were counterproductive to aims of improving the educational environment for women and minorities.104 IV. Tactics to Combat Bigoted Speech Speech restriction codes at public universities have a poor track record. Both the broad model (like the University of Michigan’s) and the narrow (like Stanford’s) have not fared well in courts. However, the question remains: if bigoted speech is a significant issue at universities, how should it 102

Thomas W. Simon, Fighting Racism: Hate Speech Detours, 26 IND. L. REV. 411, 432 (1993) Thomas W. Simon, Fighting Racism: Hate Speech Detours, 26 IND. L. REV. 411, 432 (1993). 104 ARATI R. KORWAR, WAR OF WORDS: SPEECH CODES AT PUBLIC COLLEGES AND UNIVERSITIES 12 (1994). 103

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be countered? I contend that universities should protect the marketplace of ideals by allowing all speech. Additionally, universities should follow a threeprong process to mitigate the harmful impacts of negative speech. First, universities should empower their students in effective counter speech. Second, they should forcibly condemn offensive speech, while allowing it to remain. Finally, they should not hesitate to punish injurious conduct—but not speech. As Justice Scalia noted in R.A.V. v. City of St. Paul that the city of St. Paul had effective means to prevent the burning of a cross is someone else’s yard “without adding the First Amendment to the fire.” 105 Universities have similar means at their disposal to prevent bigoted speech without restricting First Amendment principles. The fact that a university allows offensive speech should never be interpreted as an endorsement—implicit or otherwise—of those ideas. In the United States, people are free to form right-wing groups, burn flags in anarchist protest, or espouse communism. But no one reasonably argues that government identifies or endorses those ideas; indeed, allowing them to exist is seen as crucial to the American system. Public universities allowing offensive but legally defensible speech are doing the same and should not be treated differently. The promotion of a libertarian model allows the discussion and debate of a wide array of topics resulting in the fulfillment of the university’s purpose, as noted by Justice Frankfurter’s concurrence in Sweezy.106 I contend that universities should take an active stance in denouncing offensive speech. This approach is not without issues; administrators will undoubtedly make denunciations based on a subjective opinion. This could lead individuals to engage in self-censorship and not to engage in constitutionally protected speech. When these individuals, however, are racists, homophobes, or hold otherwise objectionable views, then the policy has been successful. It is not inconceivable to imagine a suppression of legitimate academic discourse, especially when administrators target ideas that are political and divisive in nature (immigration policy, for example). Fundamentally, however, this approach 105 106

R. A. V. v. St. Paul, 505 U.S. 377 396 (1992). Supra see note 11.

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has benefits: it allows for those with dissident viewpoints to engage in offensive speech without punitive sanctions. They can—and should—face the social costs imposed by the marketplace, rather than ones imposed by the university. It is also important that universities teach students effective methods of counter speech—especially for those students that may be subjected to offensive rhetoric in the first place. This approach is favored by Robert O’Neil, the director of the Thomas Jefferson Center for the Protection of Speech, who argues teaching individuals to value equality, and teaching targets of hate speech techniques of effective counter-speech is a way to empower minorities in ways the legal suppression of hate speech is unable to achieve.107 This education approach is supported by the founding father of personality psychology, Gordon Allport, who notes that discriminatory ideals are better fought with education and ideals rather than restrictions.108 A successful application that allowed offensive speech while simultaneously condemning it and empowering students in counter speech can be seen in the University of Wisconsin–Madison’s response to the Westboro Baptist Churche’s 2016 protest of the University’s LGBT-friendly rating in the “The Advocate College Guide for LGBT Students”. The university released a statement condemning the actions of the Church but acknowledged the Church’s ability to exercise their rights and protest on campus—despite a general consensus by many that the church is considered a hate group. The school alerted students who may have been vulnerable to such a display to avoid the scene and encouraged students who wanted to engage in counter protests to do so.109 Finally, universities have substantial discretion to use their legitimate powers to punish abusive conduct—including that within the narrowly recognized categories of First Amendment exceptions. As noted by Richard Delgado and the district court that decided Doe v. University of Michigan, 107

TIMOTHY C. SHIELL, CAMPUS HATE SPEECH ON TRIAL 186 (2009). GORDON WILLARD ALLPORT, THE NATURE OF PREJUDICE. Ch. 29. (1954). 109 UW News, Westboro Baptist Church plans campus protest, UNIVERSITY OF WISCONSINMADISON (Oct 13, 2016). https://news.wisc.edu/westboro-baptist-church-plans-campus-protest/ 108

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there are several legitimate First Amendment exceptions which can be prosecuted including harassment, the usage of ‘true threats’, and others. Universities should use these avenues to bestow sanctions (e.g. allowing an individual to wear a shirt with a swastika, however punishing perpetrators for vandalism who deface university property with swastikas). In such cases, ideas are protected; but actions are not, and perpetrators can and should be punished through tort with trespass, vandalism, and the like, if the university is able to do so. There are two cases which can be compared to each other in an effort to demonstrate the difference between speech restrictions and punishment of conduct: College Republicans at San Francisco State University v. Reed110 and Dejohn v. Temple University.111 In Dejon, the Third Circuit issued a permanent injunction against Temple University’s harassment policy, asserting that there is no “harassment exception” to the First Amendment. However, in College Republicans, students challenged university codes which required them to abide by civility, intimidation, and harassment standards. While the district court granted the student group’s injunction against the civility requirement, it denied the plaintiff’s motion for injunction against the harassment and intimidation aspects of the policy on the grounds that they were limited to conduct rather than speech. 112 The court declared the prohibition of conduct that “reasonably is concluded to threaten or endanger the health or safety of any other person,” to be permissible. This “legitimate powers” approach is beneficial for two primary reasons. First, targeting conduct rather than speech is more likely to be successful in court. A parallel can be drawn to the Supreme Court case R.A.V. v. St. Paul. In R.A.V., the plaintiff—who burned a cross on a black citizen’s lawn—was successful in overturning the St. Paul ordinance by arguing that it targeted speech based on its unpopularity. However, because the conduct was classified as a hate crime, he served two years in juvenile

110

College Republicans at San Francisco State v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007). DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). 112 Supra note 98, at 1011-1012. 111

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detention.113 Second, targeting conduct has a clear precedent that would most likely shield university administrators under qualified immunity. Federal courts have been hostile toward university speech censorship even going insofar as to declare in the opinion of Bair v. Shippensburg University, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."114 As a result of a large body of casework against speech censorship courts may find university administrators who act unreasonably contrary to clearly established law, as liable for civil action under 42 U.S.C. § 1983, 1985, and 1986.115 Conclusion America’s public universities hold a privileged position in society. They are a forum where ideas can be developed, expanded, challenged and refined. In essence, these institutions are the “marketplace of ideas” at work. In this marketplace, one seeks the discovery of truth; and when one encounters wicked or objectionable ideas, the instruments of rebuttal are at hand. In the United States, the marketplace operates with two significant tools to protect against the potential fallout from harmful speech. First, the most egregious forms of speech that confer harm onto others—perjury, criminal threats, libel, etc.—are prohibited. Second, the marketplace imposes social costs on individuals who hold beliefs widely considered falsities—however, such individuals maintain the choice to retain their beliefs without retribution by the state. Any sanction by government has the potential to chill legitimate inquiry and impede the discovery of truth, which undermines the fundamental tenets of a university—and of a democratic society.

113

TIMOTHY C. SHIELL, CAMPUS HATE SPEECH ON TRIAL 186 (2009). Supra see note 63 at 373. 115 42 U.S.C. § 1983, 1985, 1986 (2000). [The strong legal precedent that supports free speech on public university campuses may recognize the deprivation of First Amendment rights on college campuses a violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 818,(1982).] 114

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There is little doubt that speech restriction policies are well intentioned. Protecting potentially vulnerable students from discrimination and offensive speech is a worthwhile goal. Such policies, however, are misguided in their attempts to eliminate discrimination: they do not alter the underlying material conditions which allow discrimination, bigotry, and offensive speech to flourish. Furthermore, these policies have encountered significant difficulty when challenged in court, invariably being found to infringe upon First Amendment rights. Whether the codes have been adopted under Title VII hostile environment pretenses, the fighting words doctrine, or group libel, and regardless of how narrowly drawn these polices happen to be, they generally meet the same fate: a court finds them to be overbroad, unduly vague, and failing to meet content neutrality standards. Federal and state courts have routinely rejected such policies as to prevent the universities from becoming locales marked by their muted discourse. While the acquisition of an environment free of offensive speech and discrimination remains a worthy goal, speech censorship polices are not the way to get there. I contend that public universities should take a three-prong approach to address offensive speech, while preserving the merits of a “marketplace of ideas”. Universities should empower students in effective counter speech, administrators should forcibly condemn offensive speech while allowing it to remain, and institutions should use their legitimate powers to punish actionable conduct. Admittedly, this three-prong approach does not address the underlying causes of discrimination; but it allows individuals to maintain the freedom to inquire and the power to influence each other’s ideas. In the marketplace, this means that bad or objectionable ideas are marginalized in favor of virtuous ones. Through this method, universities can mitigate offensive speech, protect open discourse, and avoid an institutional orthodoxy that dictates what is and what is not permissible for students. Most importantly, this approach does not contravene the principles of the First Amendment and allows public universities to remain an open forum—all while protecting students.

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UCLA UNDERGRADUATE LAW JOURNAL Jamail Gibbs*

The Unconstitutional Nature of America's Money Bail System ABSTRACT. America’s money bail system is an unconstitutional form of pretrial justice that violates foundational constitutional protections. As a result of significant judicial discretion in the administration of bail, along with a lack of oversight mechanisms to ensure compliance with predetermined constitutional boundaries, America’s money bail system infringes on the Excessive Bail Clause of the Eighth Amendment. The propagation of a system in which the enjoyment of a right depends on one’s ability to pay a specified amount of money is contrary to the sentiments expressed in the Equal Protection Clause. Fortunately, solutions exist in the form of evidence-based risk assessment algorithms that maintain safety and preserve fundamental constitutional protections. Specifically, by utilizing evidence-based risk assessment tools, many jurisdictions are projected to improve the efficacy of the system while preserving public safety and constitutional rights.

*

Jamail Gibbs is a second-year political science major at the University of California, Los Angeles. In addition to his involvement with the UCLA Undergraduate Law Journal, Jamail serves as one of seven Justices on the UCLA Undergraduate Students Association Judicial Board and as a Bruin Advisor with the UCLA Early Academic Outreach Program. He has a profound interest in constitutional law and plans to attend law school following his studies at UCLA.

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Introduction As it stands today, America’s money bail system violates the core tenets of foundational constitutional rights. Originating from an English system established in the late seventeenth century to encourage the release of defendants as they await trial, money bail is a legal process by which an individual pays a set amount of money to obtain release from police custody, functioning as a form of collateral to ensure an accused individual appears in court.1 Although the English system inspired America's modern bail system, the American system diverged from its roots and functions counter to this goal. Under the current bail system, infringements of our constitutional rights are responsible for a pretrial legal system in which jails host more than 450,000 unconvicted individuals awaiting trial on any given day who simply cannot afford bail, rather than holding defendants who pose high flight risks or dangers to the community.2 Furthermore, nearly seventyfive percent of people in jail face detainment for nonviolent traffic, property, drug, or other related public offenses.3 Moreover, from 1983 to 2013, the average length of stay in U.S. jails increased from an estimated fourteen days to twenty-three days.4 In twenty-three days, defendants risk losing their employment and must forfeit any family obligations they may have because they cannot afford bail. Although defendants may seek the help of bail bond agents if they cannot afford the bail on their own, these third-parties usually charge a non-refundable premium ranging from ten to twenty percent of the bail amount.5 If a defendant can pay the premium, they gain pretrial freedom. However, if charges are ultimately dropped, as they are in many cases, then these individuals cannot recover the non-refundable premium 1

See HABEAS CORPUS ACT OF 1679 (1979), 3 http://www.legislation.gov.uk/aep/Cha2/31/2. 2 See Ram Subramanian, Incarceration's Front Door: The Misuse of Jails in America, 1 (2015), https://storage.googleapis.com/vera-webassets/downloads/Publications/incarcerations-front-door-the-misuse-of-jails-inamerica/legacy_downloads/incarcerations-front-door-report_02.pdf. 3 See Id, at 5. 4 See Id, at 10. 5 How Much Does Bail Cost?, ABOUTBAIL.COM. Accessed March 28, 2018. https://www.aboutbail.com/pages/bail-cost.

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amount.6 Given these circumstances, addressing issues surrounding the unconstitutionality of America’s money bail system is critical in promoting a more just and equitable pretrial legal system. The current state regarding the constitutionality of America’s money bail system is somewhat uncertain given recent court decisions on the district level affirming its unconstitutionality.7 Although organizations such as the Civil Rights Corps have won cases regarding its violation of the Equal Protection Clause in multiple jurisdictions, the Supreme Court has yet to rule on the constitutionality of money bail as a form of pretrial justice.8 In 2017, a federal district court judge ruled that Harris County’s bail system was in violation of the Equal Protection Clause of the Fourteenth Amendment.9 However, this ruling only applied to the bail practices in Harris County, Texas.10 While this ruling represents a significant victory in challenging the employment of money bail on constitutional grounds, its use in the overwhelming majority of jurisdictions nationwide remain uncontested. Moreover, barring a Supreme Court decision on the matter, eliminating the practice of money bail nationwide would require countless lawsuits at the district level. Considering that the vast majority of counties already employ this system, along with the lengthy process of lawsuits, such a feat would take decades with no guarantee of victory in every jurisdiction. This article argues that America’s money bail system is an unconstitutional form of pretrial justice that violates foundational constitutional protections. Specifically, the money bail system facilitates infringement of the Excessive Bail Clause of the Eighth Amendment as a result of significant judicial discretion in the administration of bail along 6

See Pretrial Justice Institute, Pretrial Justice: How Much Does It Cost?, 2 (2017), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?Doc umentFileKey=4c666992-0b1b-632a-13cb-b4ddc66fadcd. 7 See CIVIL RIGHTS CORPS, http://www.civilrightscorps.org/ending-wealth-basedpretrial-detention/ (last visited February 04, 2018). 8 Id. 9 See Eli Rosenberg, Judge in Houston Strikes Down Harris County's Bail System, THE NEW YORK TIMES (April 29, 2017), https://www.nytimes.com/2017/04/29/us/judge-strikesdown-harris-county-bail-system.html?_r=0. 10 Id.

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with a lack of oversight mechanisms to ensure compliance with predetermined constitutional boundaries. Furthermore, the money bail system violates the Equal Protection Clause of the Fourteenth Amendment by restricting the right to pretrial freedom on the basis of economic status. Part II provides background on the shift in money bail jurisprudence and expansion of judicial discretion in the administration of money bail. Part III argues the current system violates the Excessive Bail Clause and Equal Protection Clause of the Eighth and Fourteenth Amendments to the United States Constitution. Part IV concludes by providing insight on alternatives to the money bail system, proposing evidence-based means to restructure the pretrial legal system to ensure greater eďŹƒciency, safety, and equality. I. Background A. Judicial Discretion in Early American Money Bail Jurisprudence In order to understand the constitutional violations posed by the current system, it is critical to analyze the history of jurisprudence and judicial discretion regarding the administration of money bail in America. With the Eighth Amendment and Federal Judiciary Act of 1789,11 the following protections characterized America’s early money bail system: protections against excessive bail, a right to bail in non-capital cases, and the use of bail only as a means of assuring the appearance of the defendant at trial.12 Little changed in the history of bail jurisprudence until the 1951 Supreme Court case Stack v. Boyle,13 which was the first Supreme Court case regarding the administration of bail.14 This case required the Court to determine whether

11

Federal Judiciary Act, 1 STAT. 73 (1789). Id. 13 Stack v. Boyle, 342 U.S. 1 (1951). 14 See Michael R. Jones, Claire M. B. Brooker, and Timothy R. Schnacke, A Proposal to Improve the Administration of Bail and the Pretrial Process in Colorado's First Judicial District, 22 (2009), http://www.clebp.org/images/2009-0219_Jeffco_Bail_Proposal.pdf. 12

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the administration of the defendants’ bail violated their civil liberties under the Eighth Amendment's protection from excessive bail.15 Specifically, the dispute involved a district court’s decision to set a bail of $50,000 for each of the defendants solely because individuals convicted on similar charges forfeited bail, thereby bypassing the traditional standards of setting bail.16 The district court failed to provide evidence to justify why the bail amount was higher than average, and as a result, the Supreme Court ruled bail was inappropriately set in this case.17 Specifically, the Court ruled, The modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “excessive” under the Eighth Amendment. Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.18

Essentially, if a court decides to set bail higher than average for a particular crime, supporting evidence must be provided as to how the bail will serve the purpose of ensuring the defendant appears in court. In order to accomplish this, the evidence must show that an individual poses an unusually high flight risk; for example, a defendant with little ties to the community, a history of missing court hearings, or who was apprehended while on the run from law enforcement poses a significant flight risk. This standard of evidence is necessary because, in the absence of such evidence, courts could set arbitrary bail amounts, essentially allowing bail to become utilized as a form of punishment. Stack v. Boyle represents the limited discretion judges previously possessed in the administration of bail by allowing judges to set bail higher than average only if a defendant posed an unusually high flight risk. Over time, this limited discretion held by judges in early bail jurisprudence expands significantly, profoundly shaping modern money bail jurisprudence.

15

Stack v. Boyle, 342 U.S. 1 (1951). Id. 17 Id. 18 Id, at 5. 16

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B. The Expansion of Judicial Discretion in Modern Money Bail Jurisprudence Following Stack v. Boyle, judicial discretion concerning the administration of money bail expanded in landmark Supreme Court rulings like Carlson v. Landon.19 In this case, the Court clarified that the traditional right to freedom before conviction in the federal system was not absolute. This case required the Court to decide whether or not it was legal to detain the appellant, an undocumented member of the communist party, without bail while his eligibility for deportation was determined.20 The Court ruled this action lawful because there was reasonable cause that the appellant’s release on bail would “endanger the safety and welfare of the United States.”21 This ruling expanded judicial discretion by upholding the legality of denying bail to individuals who posed threats to the security of the nation. Centrally, Carlson v. Landon set the stage for a continuous increase of judicial discretion in the administration of money bail in the coming years by declaring that the right to pretrial freedom was not absolute. In United States v. Salerno,22 the Supreme Court profoundly shaped modern bail jurisprudence and judicial discretion by upholding the legality of The Bail Reform Act of 1984. The Act permitted federal judges to consider a defendant's risk to the community when administering bail.23 Furthermore, the Act expanded judicial discretion by allowing judicial officers to consider the seriousness of the charges, the defendant’s criminal background, and viability of the Government’s evidence when determining an individual's risk to the community.24 Ultimately, the Court ruled the law was not in violation of the Due Process Clause of the Fifth Amendment nor the Excessive Bail Clause of the Eighth Amendment.25 Specifically, the Court ruled, 19

Carlson v. Landon, 342 U.S. 524 (1952). Id. 21 Id, at 525. 22 United States v. Salerno, 481 U.S. 739 (1987). 23 Id. 24 Id. 25 Id. 20

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The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal.26

Additionally, the Court established the right to bail is not absolute. Specifically, the Court ruled that the Excessive Bail Clause of the Eighth Amendment was “lifted, with slight changes, from the English Bill of Rights Act,” which “did not grant the right to bail in all cases.”27 Also, “When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.”28 Although no constitutional right to bail exists, most states and the Federal Government have enacted provisions providing for the right to bail in non-capital offenses. Through the evolution of the bail system via legislation and Supreme Court decisions, the following characterizes modern money bail jurisprudence: first, while the right to bail is a core aspect of the law, it is not absolute, and its restrictions are up to federal and state governments to decide. Second, in the event bail is permitted, it must be a reasonable amount dependent on the unique case of every individual to ensure their return to court. Lastly, under current money bail jurisprudence, courts can legally set bail higher than usual or deny bail altogether if a defendant poses an unusually high flight risk or danger to the community. Following United States v. Salerno, judicial discretion in the administration of bail expanded exponentially and remains unrestrained given the constitutional violations witnessed today. II. Constitutional Violations Posed by America’s Money Bail System Today, America’s bail system violates the core tenets of some of the most fundamental constitutional rights. Namely, today’s system infringes 26

Id, at 481. United States v. Salerno, 481 U.S. 754 (1987). 28 Id. 27

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on the Excessive Bail Clause of the Eighth Amendment along with the Equal Protection Clause of the Fourteenth Amendment. In this section, I provide interpretations of both clauses as evinced by recent Supreme Court decisions and argue that the bail system challenges each of the constitutional provisions under the aforementioned interpretations. A. Violations of the Eighth Amendment The considerable discretion in the administration of money bail enjoyed by judicial officers operates without constraints to ensure compliance with The Excessive Bail Clause of the Eighth Amendment. The Eighth Amendment to the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”29 As this article will demonstrate, America’s money bail system violates the core sentiments expressed in the Eighth Amendment, specifically, the Excessive Bail Clause. First, this article will explore leading interpretations of the Excessive Bail Clause as provided by the Supreme Court. The two leading interpretations of this clause to date are expressed in the Court decisions of Stack v. Boyle and United States v. Salerno. First, In Stack v. Boyle, the Court held that bail is “excessive” when the amount of money required is higher than needed to reasonably achieve the presence of an accused.30 The Supreme Court ruling in United States v. Salerno, however, gives a more comprehensive interpretation of what it means for bail to be excessive, stating, The only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be “excessive” in light of the perceived evil. Of course, to determine whether the Government's response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more.31 29

U.S. CONST. amend. VIII. Stack v. Boyle, 342 U.S. 1 (1951). 31 United States v. Salerno, 481 U.S. 754 (1987). 30

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According to this decision, bail is deemed “excessive” when it is set at an amount more than needed to ensure the satisfaction of governmental interests. Given the interpretations of the Excessive Bail Clause provided by these two decisions, the following can be concluded: bail qualifies as excessive, and in violation of the Eighth Amendment, when it is set higher than an amount calculated to ensure the proclaimed governmental interest. Historically, the Government has been primarily interested in two things: preventing flight and preserving community safety. As it stands today, the substantial discretion judges have in setting bail allows them to set arbitrary amounts much higher than needed to ensure the aforementioned government interests—thereby granting them the potential to violate the Excessive Bail Clause of the Eighth Amendment. As there are no oversight mechanisms preventing judges from operating outside the constitutional boundaries established in Stack v. Boyle and United States v. Salerno, judges can violate prescribed constitutional limits regarding excessive bail with impunity. The lack of adequate oversight mechanisms to counter the discretion of judicial officers in bail administration is evident in the bail contestation process. For example, if a defendant believes their bail is excessive, the only remedy is to “move for a reduction, and, if that motion is denied, appeal to the Court of Appeals, and, if unsuccessful, appeal to the Supreme Court Justice sitting for that circuit.”32 The bail contestation process may appear straightforward, but when accounting for the lack of quality legal access faced by indigent defendants, it becomes clear the sole legal avenue individuals can use to challenge excessive bail is inaccessible. Indigent defendants who cannot afford a personal attorney are entitled to a public defender for legal assistance as part of their Sixth Amendment right to counsel.33 Due to the significant time and resource limitations of these publicly funded attorneys, however, an estimated ninety to ninety-five 32

See Michael J. Garcia, Kate Manuel, Andrew Nolan, and Meghan Totten for United States, Library of Congress, Congressional Research Service, Constitution of the United States of America: Analysis and Interpretation, 1568 (2016), https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016.pdf. 33 Gideon v. Wainwright, 372 U.S. 335 (1963).

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percent of these criminal cases in both state and federal courts are resolved through plea bargaining—an arrangement between a prosecutor whereby the defendant pleads guilty to a lesser charge in exchange for leniency.34 Given these statistics, disputing a bail amount is an option seldom offered to defendants without access to quality legal assistance. More importantly, although courts are mandated to hear arguments regarding bail reduction, they are not required to set bail at an amount the defendant can easily pay. In United States v. Brian Szott,35 the Seventh Circuit Court of Appeals ruled, The purpose of bail is not served unless losing the sum would be a deeply-felt hurt to the defendant and his family; the hurt must be so severe that the defendant will return for trial rather than flee. This implies that a court must be able to induce a defendant to go to great lengths to raise the funds without violating the condition in Sec. 3142(c) that bail may not be used to deny release altogether.36

Given this ruling, judges can set bails higher than needed to protect governmental interests, so long as they can explain why the bail amount is “an indispensable component of the conditions for release.”37 This ruling represents a significant expansion of judicial discretion in the administration of bail without providing any means of ensuring judicial officers operate within constitutional boundaries. Given that an appeal for bail reduction is handled by the same judge who grants the initial bail, the precedence set by this case indicates that if a judge is resolute in setting an excessive bail, either through bias or misjudgment, there is little a defendant can do to rescind the decision. Furthermore, because indigent defendants face a lack of access in hiring experienced attorneys, this limits their opportunities for appealing to one of the thirteen appellate courts, and subsequently to a Supreme Court Justice sitting for their circuit. As mentioned previously, indigent defendants who cannot afford a private attorney are assigned a public defender. According to 34

Lindsey Devers, Plea and Charge Bargaining, 1 (2011), https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf. 35 United States v. Brian Szott, 768 F.2d 159 (7th Cir. 1985). 36 Id. 37 See United States v. Nelson Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991).

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a 2007 Department of Justice report, seventy-three percent of county-based public defender offices exceeded the maximum recommended of cases per attorney.38 Given this statistic, it is highly unlikely that public defenders have the time or resources required to appeal and argue in appellate courts for defendants who were given excessive bail amounts. Even if public defenders had the time and resources to appeal to appellate courts, as of 2018, there are only thirteen courts of appeals but hundreds of thousands of individuals incarcerated on any given day because they cannot afford bail.39 Hence, placing the burden of the appeals process of such a massive population on the thirteen appellate courts is logistically infeasible. Although judges are some of the most revered individuals in our legal system, they too are prone to biases and lapses in judgment. Due to the stringent conditions on denying bail outright, and by extension pretrial release, judges may opt to utilize excessive bail to accomplish this goal. Oftentimes, judges cannot accurately gauge the risk of a defendant and may deny pretrial release through excessive bail to eliminate the possibility of releasing a defendant who later commits a crime. Other judges may possess certain biases and seek to punish the defendant. One example of the latter is evidenced in the disparity in bail amounts between white and black defendants. A recent Princeton study discovered, “Black defendants are 3.6 percentage points more likely to be assigned monetary bail than white defendants and, conditional on being assigned monetary bail, receive bail amounts that are $9,923 greater.”40 It is incorrect to assume that judges are perfectly impartial administers of bail merely because they take an oath to carry out the duties of their office impartially, and not implementing oversight mechanisms allows these officers to act on their biases while 38

Donald, Jr. Farole and Lynn Langston. County-based and Local Public Defender Offices, 2007, 1 (2010) https://www.bjs.gov/content/pub/pdf/clpdo07.pdf. 39 See Ram Subramanian, Incarceration's Front Door: The Misuse of Jails in America, 1 (2015), https://storage.googleapis.com/vera-webassets/downloads/Publications/incarcerations-front-door-the-misuse-of-jails-inamerica/legacy_downloads/incarcerations-front-door-summary.pdf. 40 David Arnold, Will Dobbie, and Crystal S. Yang, Racial Bias in Bail Decisions, 1 (2017), https://www.princeton.edu/~wdobbie/files/racialbias.pdf.

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violating constitutional protections with impunity. Whether motivated by a lack of knowledge regarding the risk of an individual or the desire to punish a defendant, administering excessive bail to deny pretrial release is in violation of the Excessive Bail Clause of the Eighth Amendment. On a broad scale, the unchecked discretionary power of judicial officers, along with the lack of oversight in administering bail, is responsible for a system where an estimated three out of every five individuals in jail are unconvicted but simply cannot afford bail.41 This situation is a byproduct of an unregulated bail system characterized by rising bail averages and the decreasing use of release on personal recognizance. Release on personal recognizance refers to a written promise to appear in court at a later date that grants immediate, costless pretrial freedom and was historically employed when a defendant committed a minor offense.42 In fact, when adjusting for inflation, average bail amounts increased by approximately $19,000 between 1992 and 200643 while the use of release on personal recognizance declined by thirty-three percent over the same period.44 The only factors that would justify significantly higher bail averages over such a short period are an increase in dangerous defendants who pose dangers to the community, or a revolution in transportation that would increase the flight risk of defendants—two government interests whose satisfaction legally warrant higher bail. Likewise, the sharp decrease in using personal recognizance as a method of release should accompany an increase in dangerous or flight41

See Ram Subramanian, Incarceration's Front Door: The Misuse of Jails in America, 1 (2015), https://storage.googleapis.com/vera-webassets/downloads/Publications/incarcerations-front-door-the-misuse-of-jails-inamerica/legacy_downloads/incarcerations-front-door-summary.pdf. 42 See Findlaw, Bail & Bonds, FINDLAW (January 14, 2018), http://criminal.findlaw.com/criminal-legal-help/bail-bonds.html. 43 See BUREAU OF LABOR STATISTICS, All Urban Consumers (Current Series) Database, data.bls.gov/cgi-bin/dsrv?cu. (last visited March 3, 2018). A customizable table of annual CPI values for The United States ranging from 1992 to 2006; 1992 used as the base year. 44 See Justice Policy Institute, Bail Fail: Why the U.S. should end the practice of using money for bail, 10 (2012), http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf. The figures used in this report regarding bail averages were adjusted for inflation utilizing the method in footnote 36.

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prone individuals. However, violent crime has fallen sharply since the 1990s, and no revolutionary means of transportation have been introduced, meaning defendants were not posing greater flight risks or danger to their communities that would justify significantly higher bail averages.45 In fact, the vast majority of inmates in jail awaiting trial today are poor, non-violent, non-felony offenders.46 As their classifications indicate, these individuals pose little to no flight risk or harm to the community. This situation is a byproduct of unchecked discretion in setting bail held by judicial officers. On a narrower scale, there are cases when considering the flight risk and danger to the community posed by the individual by accounting for aspects such as criminal record, ties to the community, and accused crime(s), where the bail amount is grossly excessive given the facts of the case. Specifically, one of the most flagrant violations of the Excessive Bail Clause in recent times occurred in 2015 following the Baltimore protests surrounding the death of Freddie Grey, an unarmed African-American male, at the hands of police. When a picture of eighteen-year-old Allen Bullock vandalizing a police car surfaced in the media, he, with the advisement of his stepfather, decided to turn himself into the authorities.47 Bullock faced eight criminal charges, including rioting and destruction of property; however, his bail was set at $500,000 and made national headlines.48 As a young adult living with his cousin and possessing extensive family ties in the community charged with vandalizing an empty police car, Bullock posed little to no flight risk or harm to his community.49 Considering Bullock’s $500,000 bail is 45

See John Gramlich, 5 Facts about Crime in the U.S., PEW RESEARCH CENTER (February 21, 2017), http://www.pewresearch.org/fact-tank/2017/02/21/5-facts-aboutcrime-in-the-u-s/. 46 See Eric H. Holder Jr., Attorney General Eric Holder Speaks at the National Symposium on Pretrial Justice, THE NATIONAL SYMPOSIUM ON PRETRIAL JUSTICE (June 1, 2011), https://www.justice.gov/opa/speech/attorney-general-eric-holderspeaks-national-symposium-pretrial-justice. 47 See Jon Swaine, Oliver Laughland, Paul Lewis, and Mae Ryan, Baltimore Rioter Turned Himself in – but his Family Can't Afford a $500,000 Bail Sum, THE GUARDIAN (April 30, 2015), https://www.theguardian.com/us-news/2015/apr/30/baltimorerioters-parents-500000-bail-allen-bullock. 48 See Id. 49 See Id.

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substantially higher than the $350,000 bail set for the officers responsible for the death of Freddie Grey, the bail amount was in violation of Bullock’s Eighth Amendment right against excessive bail.50 The murder of an unarmed citizen irrefutably warrants a higher bail than the destruction of property, especially when there are no additional issues of flight risk or danger to the community. The injustice Allen Bullock suffered is only one story demonstrating the drastic consequences of giving judges nearly unchecked power in determining bail amounts. Cases similar to Bullock’s arise out of a judge’s desire to keep defendants incarcerated until trial for a variety of reasons. Nevertheless, none of these reasons can remotely justify constitutional infractions. If judges wish to detain individuals until trial indefinitely, they must work within the existing legal framework to achieve this goal. Otherwise, using excessive bail as an expedient way to accomplish this infringes on one of our fundamental civil liberties—the right against excessive bail. Given the aforementioned, America’s bail system violates the Excessive Bail Clause of the Eighth Amendment. B. Violations of the Fourteenth Amendment In addition to violating the Excessive Bail Clause, America’s money bail system also infringes on the Equal Protection Clause of the Fourteenth Amendment by discriminating on the basis of economic status. The Equal Protection Clause reads, “Nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”51 In order to demonstrate that money bail is unconstitutional under this provision, I will first establish state responsibility. Specifically, I will show that the state, through its actors or legislation, is engaging in discriminatory practices, thereby failing to provide equal protection of the laws. I argue jurisdictions that employ the money bail 50

See Jessica Anderson, and Luke Broadwater. All Six Officers Charged in Freddie Gray's Death Released on Bail, BALTIMORE SUN (August 05, 2016), http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-what-is-next-forofficers-20150501-story.html. 51 U.S. CONST. amend. XIV.

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system promote discrimination along economic lines through judicial officers and legislation. First, the actions of judicial officers are attributable to the state as upheld in the Supreme Court decision Ex Parte Virginia.52 This case involved a Virginia state judge’s violation of the Civil Rights Act of 1875 by excluding African Americans from juries and upheld the legality of congressional authority in enforcing African Americans’ rights to serve on juries in state courts.53 The Court additionally ruled, Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State.54

Although no state law mandated the judge discriminate based on race, the state of Virginia was still responsible since the judge’s actions, “clothed with the state’s power,” constituted acts of the state.55 Likewise, judges who hand down excessive bail amounts, or any bail whatsoever, discriminate on the basis of economic status by allowing defendants of wealthy economic backgrounds to purchase their pretrial freedom while denying this same freedom to indigent defendants. While there are no statutes directing judges to decide pretrial liberty based on economic status, states are nevertheless responsible for the overwhelming number of incarcerated indigent defendants awaiting trial, as judges act in the name of the state. Furthermore, the very institution of money bail systems enacted via legislation is another instance of a state act that discriminates on the basis of income, thereby denying equal protection under the law. Whether bail administration is standardized, such as in bail schedules in California,56 or its conditions are governed through state

52

Ex Parte Virginia, 100 U.S. 339 (1879). Id. 54 Id, at 347. 55 Id, at 347. 56 Cf. The Superior Court of California County of Los Angeles, Los Angeles County Felony Bail Schedule, 3 (2018), https://www.lacourt.org/division/criminal/pdf/felony.pdf. 53

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legislation, the establishment of a system in which an individual’s pretrial freedom depends on their ability to pay some arbitrary monetary sum inherently discriminates on the basis of economic status. Now that state responsibility has been established, this article will explore interpretations of the Equal Protection Clause in the context of the criminal legal system, and how discriminating on the basis of economic status infringes on this constitutional protection. In Griffin v. Illinois,57 the Supreme Court provided a clear explanation for what it means to be equal before the law in the criminal legal system, ruling, Our own constitutional guarantees of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with a crime must, so far as the law is concerned, “stand on an equality before the bar of justice in every American court.” Chambers v. Florida, 309 U. S. 227, 309 U. S. 241. See also Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369.58

In the criminal legal system, the Equal Protection Clause requires everyone charged with a crime to be treated equally regardless of classification. Furthermore, the Court ruled, “In criminal trials, a State can no more discriminate on account of poverty than on account of religion, race, or color.”59 Although bail proceedings occur during the pretrial stage, these individuals are still charged with a crime and are thus required to be given equal protection as outlined in Griffin v. Illinois. The aforementioned interpretations of the Equal Protection Clause establish two principles. Firstly, the Equal Protection Clause protects against discrimination between groups of people in criminal legal proceedings. Secondly, discrimination on the basis of poverty in criminal legal proceedings is unconstitutional. Therefore, a defendant should not gain pretrial freedom because they can pay some set arbitrary dollar amount if another defendant posing the same level of risk is denied this right because (“The purpose of this bail schedule is to fix an amount upon which a person who is arrested without a warrant may be released from custody prior to appearance in court.”). 57 Griffin v. Illinois, 351 U.S. 12 (1956). 58 Id, at 17 59 Id.

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they cannot afford it—this goes against what it means to be equal before the law. Some may argue that pretrial freedom is not a right explicitly granted in the Constitution, and therefore a defendant’s right to being equal before the law is not being violated when they are denied pretrial freedom on the basis of economic status. In response, I contend that past bail jurisprudence surrounding the Eighth Amendment, in conjunction with the rights granted by the Ninth Amendment, create a right to pretrial freedom. Intuitively, the purpose of the Excessive Bail Clause is to prevent judges from utilizing excessive bail to keep a defendant detained. In fact, the Excessive Bail Clause was carried over from the English Bill of Rights Act of 1689, where the original clause was a response to judges setting bails so high that they could not be met in an effort to keep defendants imprisoned.60 Given that the Excessive Bail Clause “was lifted with slight changes” from this legislation, it is fair to assume the clause was adopted with the purpose of preventing the same practice from occurring in America.61 Given this, it can be inferred the Excessive Bail Clause was included in the Eighth Amendment to prevent judges from employing excessive bail to deny pretrial freedom in America as was done in England. The only reason one would prohibit the use of excessive bail to achieve pretrial detention is if pretrial liberty is considered to be a right. The Ninth Amendment to the United States Constitution reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”62 Today, Americans enjoy many rights not explicitly enumerated in the United States Constitution, such as the right to privacy and the right to marriage. At its core, the Ninth Amendment serves as a protector of rights not included in the Bill of Rights at the time of its ratification, or those that may arise in the future as a result of a changing world. Just because the right to pretrial freedom is not 60

See Justia Law, Excessive Bail, https://law.justia.com/constitution/us/amendment08/01-excessive-bail.html (last visited February 16, 2018). 61 United States v. Salerno, 481 U.S. 754 (1987). 62 U.S. CONST. amend. IX.

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explicitly written in the Constitution does not mean it can never exist as a right. Given the discussion regarding the history of the Excessive Bail Clause, along with the Ninth Amendment, I argue that the two amendments together create a right to pretrial freedom. Additionally, in Stack v. Boyle, the opinion of the Court referenced pretrial freedom as a right, stating, “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.”63 Pretrial freedom is a right, and to grant this right to defendants who can afford bail while denying it to those who cannot, given similar charges, is a violation of the Equal Protection Clause of the Fourteenth Amendment. Now that I have established how the money bail system challenges the Equal Protection Clause, I will provide evidence to demonstrate the unjust discrimination faced by low-income Americans under this system. A recent study conducted in Maryland highlights the discriminatory nature of our current system. The study was conducted from 2011-2015 and involved more than 700,000 criminal cases. It concluded that individuals arrested in the state from 2011-2015 paid more than $256 million in nonrefundable bail agent premiums.64 Additionally, more than $75 million of these premiums were charged in cases resolved with no evidence of wrongdoing.65 In such instances, defendants do not get their money back; this is more than $75 million taken from Americans who were not convicted of a crime and enlisted the help of bail agents because they could not afford bail on their own to gain pretrial freedom. These citizens were stripped of their money without due process, and this injustice is worse for low-income Americans since they are deprived of an already limited amount of wealth. The findings of this study support my argument that the state-sanctioned practice of money bail discriminates against indigent Americans. 63

Stack v Boyle, 342 U.S. 4 (1951). Arpit Gupta, Douglas Swanson, and Ethan Frenchman, The High Cost of Bail: How Maryland's Reliance on Money Bail Jails the Poor and Costs the Community Millions, 4 (2016), http://www.opd.state.md.us/Portals/0/Downloads/High%20Cost%20of%20Bail.pdf 65 Id. 64

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Additionally, a 2013 study conducted by The Laura and John Arnold Foundation found, “In two large jurisdictions that LJAF examined in detail, nearly half of the highest-risk defendants were released pending trial. And, on the other end of the spectrum, our data shows that low-risk, non-violent defendants are frequently detained.”66 This study suggests two things: first, America’s bail system fails at protecting government interests by granting high-risk individuals pretrial freedom, and second, that the bail system grants pretrial liberty to defendants with money while denying this same right to those without, regardless of a defendant’s risk level. Given this, it is evident that the current bail system discriminates on the basis of economic status and thus violates the Equal Protection Clause of the Fourteenth Amendment. III. Recommendations With the help of technology, jurisdictions across America can implement useful forms of pretrial justice that are more economical, constitutional, and fair to the people they serve. Through utilizing evidencebased risk assessment tools, many jurisdictions are projected to save tremendous amounts of money while preserving public safety and equality before the law. In this section, I will explore jurisdictions that have successfully implemented alternative forms of pretrial justice and provide arguments regarding how the pretrial justice system should be reformed to ensure maximum efficiency, equality, and safety. First, I will discuss the success of the District of Columbia in pioneering the use of alternative forms of pretrial justice as one of the only jurisdictions nationwide that do not require an individual post bail for release. D.C.’s noteworthy success should serve as an inspiration for jurisdictions nationwide that may be considering alternative forms of pretrial justice. The Pretrial Services Agency (PSA) for the District of Columbia is an independent federal agency that supports courts in the area with pretrial 66

Arnold Foundation, Developing a National Model for Pretrial Risk Assessment,1-2 (2013), https://cjcc.doj.wi.gov/sites/default/files/subcommittee/LJAF-researchsummary_PSA-Court_4_1.pdf.

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justice services ranging from risk assessment to the surveillance of defendants.67 PSA uses technology ranging from telephones to GPS devices to conduct its surveillance programs.68 Although some may dismiss D.C.’s system as impossible to replicate anywhere else due to the costs of funding such an agency, PSA’s core pretrial functions cost approximately $81,000 per day with supervision costs for defendants around $18 per day.69 Considering it costs taxpayers an estimated $85 per day to keep a defendant incarcerated, this is an undoubtedly cost-efficient system given PSA’s results.70 Over the last five years, “An average 88% of D.C.’s pretrial defendants were released pending trial—of those, 89% remained arrest-free (and of those re-arrested, less than 1% were charged with a violent crime) and 88% made all scheduled court appearances.”71 These results show that PSA and D.C. Courts, employing evidence-based risk assessment algorithms, were able to achieve exponentially higher rates of pretrial release while preserving public safety and high court appearance rates. As a result of this remarkable efficiency, the city jail operates at below 60% capacity with only about 12% of the population being pretrial detainees.72 Other jurisdictions, such as Santa Clara County, California, have implemented evidence-based risk assessment tools in their pretrial justice systems with great success. Through the use of a locally-validated pretrial risk assessment tool, the county spends $15-$25 per day on pretrial release operations versus $204 per day for jail.73 Additionally, Santa Clara County maintains a 95% court appearance rate along with a 99% public safety rate of 67

See Clifford T Keenan, It's About Results, Not Money, PRETRIAL SERVICES AGENCY (September 4, 2014), https://www.psa.gov/?q=node%2F499. 68 See Id. 69 See Id. 70 See Pretrial Justice Institute, Pretrial Justice: How Much Does It Cost?, 2 (2017), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?Doc umentFileKey=4c666992-0b1b-632a-13cb-b4ddc66fadcd. 71 See Clifford T Keenan,. It's About Results, Not Money, PRETRIAL SERVICES AGENCY (September 4, 2014), https://www.psa.gov/?q=node%2F499. 72 See Id. 73 See Pretrial Justice Institute, Pretrial Justice: How Much Does It Cost?, 5 (2017), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?Doc umentFileKey=4c666992-0b1b-632a-13cb-b4ddc66fadcd.

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defendants released without supervision.74 Kentucky releases 88% of arrested individuals with approximately 3% receiving additional supervision conditions utilizing validated, risk-assessment tools.75 Moreover, the state saved its counties around $25 million in jail costs one year by increasing the pretrial release rate by only 5%.76 As these jurisdictions employing alternative pretrial systems demonstrate, with the help of technology, jurisdictions across the nation can implement pretrial justice systems that are safe, constitutional, and economical. Given the problems posed by our money bail system, it is evident our pretrial justice system is in need of immediate reform. Our money bail system is presently an unconstitutional form of pretrial justice that should become abolished nationwide. Although some may be concerned about the fate of high-risk individuals, under current jurisprudence they have no inherent right to pretrial release by virtue of their nature as high-risk defendants, so abolishing the bail system will not grant these defendants any freedoms. However, it will represent a significant change for the many lowrisk Americans incarcerated today. Instead of being needlessly detained, weighing down government budgets, and incurring societal costs, their pretrial freedom decision will be subject to the determination of unbiased risk assessment algorithms. Much like the evolution of the current bail system, states should maintain complete autonomy in adopting and administering alternative forms of pretrial justice. The federal government should provide block grants to states to aid in establishing pretrial agencies, such as the Pretrial Services Agency in the District of Columbia. However, regardless of how new pretrial systems are developed, evidence-based risk assessment algorithms should play an integral role in making pretrial release decisions.

74

See Id. See Id. 76 See Id. 75

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Conclusion The constitutional challenges posed by America’s money bail system are evident. Unchecked discretion held by judges, in conjunction with the lack of oversight to ensure adherence to prescribed constitutional boundaries regarding the Excessive Bail Clause, are responsible for widespread violations of this foundational constitutional liberty. The propagation of a system in which the enjoyment of a right depends on one’s ability to pay a specified amount of money is contrary to the sentiments expressed in the Equal Protection Clause. Fortunately, solutions exist in the form of evidence-based risk assessment algorithms that have experienced remarkable success in a variety of jurisdictions. A Supreme Court decision or congressional legislation prohibiting the employment of money bail in America while facilitating the adoption of risk assessment algorithms will have significant implications for America’s pretrial justice system. In particular, the current system will experience increases in efficacy while preserving public safety. Most importantly, however, every American will be afforded the benefits of a more equitable and just pretrial justice system without infringement of their foundational constitutional rights.

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UCLA UNDERGRADUATE LAW JOURNAL Robert B. Watson*

The Other Side of Title IX: The Legal Case Against Public Single-Sex Schooling ABSTRACT. Many may find it hard to believe that public schools can lawfully

be segregated on the basis of gender. However, schools across the United States, such as Los Angeles Unified School District's “Girls Academic Leadership Academy,” continue to admit and educate students on the basis of gender. The legal questions surrounding protection against segregation in schooling have roots in landmark court decisions, including Brown v. Topeka Board of Education, which first applied Equal Protection jurisprudence to public education. Notable cases, including United States v. Virginia and Grove City College v. Bell, have maintained that public single-sex environments are, indeed, under the jurisdiction of the 14th Amendment's Equal Protection Clause, requiring equal opportunities for both boys and girls in public educational institutions. This article argues that public singlesex schools cannot legally claim to offer a "tailored" educational experience, while simultaneously being in compliance with "substantially equal" legislation and jurisprudence. Furthermore, if the judiciary is to begin including transgender and non-binary individuals in legal discussions on education, the binary-based "substantially equal" requirement would no longer serve as an inclusive test in determining the legality of single-sex schools. This article explores how the American legal system should grapple with students who may be forced to attend a school that does not coincide with their gender identification.

*

Robert B. Watson is a second year Political Science major at UCLA. He is currently Director of UCLA's Undergraduate Student Association's (USAC) Council of Presidents and Head Director of his nonprofit organization, Good Clothes Good People, Inc. Robert plans on attending law school after graduation.

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Introduction In mid-2016, a prestigious academy for middle and high school students known as the “Girls Academic Leadership Academy,” or GALA, celebrated its grand opening in Los Angeles, California. GALA Principal Liz Hicks proclaimed that the school hopes to “inspire students to go on to STEM careers,” given that the school was designed as Los Angeles’s first publiclyfunded all-girls traditional school in over 20 years.1 Audrey Clap of The Atlantic writes that GALA is one of many new public institutions that offers "tailored learning programs" just for girls.2 While this case of single-sex schooling appears isolated amidst an almost unanimously co-gendered public school district, it is far from distinct among the United States' public schools. According to the National Association for Single-Sex Public Education (NASSPE), an organization that prides itself in single-sex education, the United States has roughly 506 all-girl schools nearly identical to GALA, all of which are public K-12 single-sex schools.3 This paper claims that single-sex schools cannot lawfully offer a socalled "tailored" educational experience based on gender, while simultaneously providing a "substantially equal" educational environment, as mandated by Title IX Amendments and Equal Protection Clause precedents established through the judiciary. Furthermore, as transgender and non-binary students who fall outside of traditional birth-linked "malefemale" categorizations continue to garner more legal protections, including new methods of identifying themselves on state identification cards, the judiciary is obligated challenge the binary-based makeup of single-sex schools. The Supreme Court has failed to provide detailed answers in past 1

Michael Janofsk, Los Angeles Unified Will Open First Single-Gender School in 20 Years, EDSOURCE (Jul. 21, 2016), https://edsource.org/2016/los-angeles-unified-willopen-first-single-gender-school-in-20-years/566973. 2 Audrey Cleo Yap, A New Generation of All-Girls Schools, THE ATLANTIC (Oct. 14, 2016), https://www.theatlantic.com/education/archive/2016/10/a-new-generation-of-all-girlsschools/504044/. 3 Single-Sex Schools/Schools With Single-Sex Classrooms/What's the Difference?, NASSPE, http://www.singlesexschools.org/schools-schools.htm.

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rulings on whether or not the Constitution protects students being forced to attend a single-sex school that does not align with their gender identity. This paper argues that single-sex schools that continuously proclaim a "tailored education" do not constitute a substantially equal learning environment, and that the increasing importance of transgender and non-binary individuals in education demands action be taken against schools who only oer binarybased single-sex education. K-12 single-sex education, popularized through schools like GALA, is no new concept. Single-sex public schooling in the United States has been in practice well before the 19th century, spurring many debates on the benefits and harms of such an education.4 Mainstream conflicts surrounding single-sex education have consistently turned to a theme of gender conflict and suppression that is situated within a variety of more nuanced implications surrounding legislative and Constitutional protections for equality. Considering the increase in self-proclaimed "tailored schooling," legal precedents, including those in Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment to the Constitution, bear important consequences for the future of public education in the U.S. I. A Specified Judicial Scope In analyzing the legality of public single-sex schooling, it is necessary to examine the impact that institutional schooling practices currently have on marginalized transgender and gender non-binary students. It is fundamentally important to note that the judiciary, and specifically the Supreme Court, has a duty to protect communities' rights that may not be easily secured through normalized political process.5 This protection is especially important for transgender and non-binary individuals, as their minority status and communal distinctions often remove traditional options to exert majoritarian political influence in order to secure fundamental rights 4

Jennifer C. Madigan, The Education of Girls and Women in the United States: A Historical Perspective, 1 ADVANCES IN GENDER AND EDUCATION, 11, 11 (2009). 5 United States v. Carolene Products Company, 304 U.S. 144, 154 (1938).

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and protections. Shedding light on how public single-sex schools synthesize a "separate but equal" learning environment and ignore the gender identities of transgender and non-binary students formulates a new picture of the unequal and un-inclusive environments these students are forced into, demonstrating that public single-sex schools are unconstitutional. Additionally, while Title IX originally severely limited the scope of its doctrine that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," numerous court cases mentioned below have expanded this scope to include almost any public educational institution.6 This paper argues that these cases set the precedent to prohibit the existence of public single-sex schools because they discriminate in terms of how a specific gender-group is educated. Amidst all this, public single-sex schools continue to advertise their "unique, tailored" educational opportunities that supposedly exist only in these environments, but such environments are only tailored to students who fit in the sex-based gender binary that has longbeen the status quo for determining gender-classification by the federal government.7 II. Establishing Skeptical Scrutiny in Cases of Gender Segregation In Brown v. Board, “separate but equal” civil-codes that separated students by race were overturned, marking the first notable effort to end discrimination based on fixed identity.8 The "separate but equal" legal doctrine was used throughout the first-half of the twentieth century, with its name given in relation to series of Louisiana civil-laws forged in 1890.9 This 6

Catherine E. Lhamon, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, Dec. 1, 2014. 7 Girls Academic Leadership Academy, https://www.galacademy.org/why-girls-school. 8 Separate but Equal: The Law of the Land, BEHRING CENTER: SMITHSONIAN NATIONAL MUSEUM OF AMERICAN HISTORY, 2014. 9 Robert A. Margo, RACE AND SCHOOLING IN THE SOUTH, 1880-1950: AN ECONOMIC HISTORY 68 (Robert A. Margo et al eds., 1st ed. 1990).

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doctrine allowed segregation on the basis of race, if treatment was equal. Although over 50 years have passed since the 1954 Brown v. Topeka Board of Education court decision legally deconstructed “separate but equal” doctrines, many of the principles of inequality it supposedly struck down still exist today in the form of public single-sex schools that treat students differently on the basis of sex-based gender classification. Despite the focus of Brown of race-based discrimination, Justice Warren famously wrote in the majority's decision that "segregation of any kind deprived Americans of their liberties."10 The legal precedents set in the overturning of the 1896 Plessy v. Ferguson11 decision are referenced in the Title IX Amendments of 1972 that inevitably placed standards on public single-sex schooling today.12 The Title IX Amendments, formulated nearly two decades after Brown, prohibit sex discrimination in schools subsidized by federal subsidies, grants, and any other forms of aid.13 While Title IX barred public educational discrimination based on sex, it concluded that single-sex schooling could exist “if it offers a substantially equal single-sex or coeducational school to students of the excluded sex.”14 The phrase "substantially equal" was first used in Title 34 of the United States Code of Federal Regulations (34 C.F.R.), which in section 106.34 includes the "substantially equal" test, mandating that single-sex learning environments have a substantially equal environment for the excluded gender.15 Title IX does not specifically reference this "substantially equal" terminology. However, numerous court cases have used the "substantially equal" test to determine whether or not a school has violated the Constitution under the 14th Amendment's Equal Protection Clause, even if these institutions were previously exempt under Title IX. For the sake of clarity in this paper, it is 10

Separate but Equal: The Law of the Land, BEHRING CENTER: SMITHSONIAN NATIONAL MUSEUM OF AMERICAN HISTORY, 2014. 11 Plessy v. Ferguson, 163 U. S. 537 (1896) 12 Catherine E. Lhamon, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, Dec. 1, 2014. 13 Grove City Coll. v. Bell, 465 U.S. 555, 563 (1984). 14 Catherine E. Lhamon, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, Dec. 1, 2014. 15 34 U.S.C. § 106.34 (2006).

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important to note the Supreme Court's duty to uphold the Constitution, not federal directives like that of the Title IX Amendments. That being said, the Supreme Court does naturally reaffirm, redefine, or negate the constitutionality and scope of legislation like that of Title IX through its decisions, whether the federal government is a plaintiff, defendant, or neither. Overall, the Supreme Court has not only reaffirmed the constitutionality of Title IX Amendments, but has also placed skeptical judicial scrutiny, which applies specifically to sex-based issues, through the substantial comparability or “substantially equal” test on single-sex schools that wish to continue sex-based segregation.16 Ultimately, Title IX legislation essentially applied the Brown v. Board protections against "separate but equal" racial environments to discrimination on the basis of sex. Almost immediately after Title IX's creation, court battles discussed later in this article arose to challenge the perceived attack on single-sex educational institutions. Five years after the Title IX Amendments' creation, the Supreme Court released a notable decision favoring a single-sex schools' district that set the standard for when a single-sex school could operate if it was supported by federal aid. In the 1977 case of Vorchheimer v. School District of Philadelphia17, a female student wished to attend a public high school that was all-male. Ultimately, the Supreme Court, in an explosive 4-4 split, allowed the Third Circuit Court's decision to stand that the School District of Philadelphia offered an "equal educational opportunity," available for female students, and thus denied her access to the all-male school.18 While this initially appeared to be a victory for single-sex schools, this same case was later used to establish a distinction between single-sex schools who offer a “substantially equal” alternative for the excluded sex and those that do not.

16

United States v. Virginia, 518 U.S. 515, 596 (1996). Vorchheimer v. School Dist. of Philadelphia, 430 U. S. 703 (1977) (per curiam) 18 Benjamin P. Carr, Can Separate Be Equal - Single-Sex Classrooms, the Constitution, and Title IX, 83 Notre Dame L. Rev. 409 (2007), http://scholarship.law.nd.edu/ndlr/vol83/iss1/7. 17

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In the 1984 case Grove City College v. Bell, the Supreme Court ruled, for one of the first times, against an educational institution seeking to avoid Title IX requirements. In this case, Grove City College, a private university, argued that the federal government’s Title IX prohibition of sex discrimination violated its First Amendment rights. In a 7-2 decision, the Court protected Title IX's applications to sex-segregated schools, even if they were considered private.19 The court justified its extension of jurisdiction into a private school's educational policies because many of the school’s students received federal grant money. This federal funding of private students' finances allowed the court to extend the Title IX mandate into the school's financial aid program, and was later broadened to apply to all parts of any educational institution through the Civil Rights Restoration Act of 1987.20 This broad application of Title IX protections, paired with the previous court decisions on providing equal educational alternatives for the excluded sex, laid the groundwork for the Court's next major decision, which set a high standard for educational institutions wishing to segregate on the basis of sex. One of the final notable court battles on single-sex schooling was the 1996 United States v. Virginia case. In this case, the United States brought forth a suit against the state of Virginia and the male-only Virginia Military Institute (VMI). Writing the seven-justice majority opinion for the Supreme Court, Justice Ginsburg argued that VMI was noncompliant with the Equal Protection Clause of the Fourteenth Amendment. This opinion was largely derived from the fact that there was virtually no "substantive comparability" between VMI and its all-female counterpart, the Virginia Women's Institute for Leadership.21 This case served to finalize the "skeptical scrutiny" constitutional standard by which public single-sex schools can exist. This scrutiny ensures that single-sex schools can exist only if there is a substantially comparable, or equal, alternative for the excluded sex, along 19

David M. Lascell, Grove City College v. Bell: What the Case Means Today, G. C. COLL. J. L. PUB. POL. 20 S. Res. 557, 100th Cong. (1987) (enacted). 21 United States v. Virginia, 518 U.S. 515, 529 (1996).

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with providing proof of "exceedingly persuasive justification" for gendered discrimination.22 Furthermore, smaller district and circuit court decisions, like that of the Wood County Board of Education v. Doe23 in 2012, continued to reaffirm the skeptical scrutiny applied to single-sex educational institutions in passing the "substantive comparability" test, which served to challenge school districts that did not provide a substantially comparable alternative for students of the excluded gender. III. Equalizing and Tailoring: An Inseparable Juxtaposition As demonstrated through notable decisions including United States v. Virginia, the motivation behind sex segregation in schooling has been due in part to perceived benefits of a "tailored" education that matches a particular student’s sex-based gender assignment.24 While the term "tailored schooling" has not been used in many legal contexts, it is important to clarify its meaning in the broader contexts of many schooling systems' attempts to offer a "unique" environment for students on the basis of problematic notions of sex-linked gender-assignments. Tailored, in the context of singlesex education, as highlighted by Rebecca Bigler in her meta-analysis Advances in Child Development in Behavior, implies the fitting of "instructional activities to the participatory styles of male and female students."25 Whether it is Amanda Morin, a "leading teacher's advocate," or author Blythe Grossberg, self-proclaimed advocates for single-sex schooling consistently cite a "tailored" education as one of the primary benefits of

22

Christina Gleason, United States v. Virginia: Skeptical Scrutiny and the Future of Gender JOHN’S L. REV. (1996), Discrimination Law, ST . https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1624&context=lawrevie w. 23 Wood County Board of Education vs. Doe, D.W.V. 11 (2012). 24 United States v. Virginia, 518 U.S. 515, 529 (1996). 25 Amy Roberson Hayes, ADVANCES IN CHILD DEVELOPMENT AND BEHAVIOR (Rebecca S. Bigler & Lynn S. Liben eds., 12th ed. 2014).

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single-sex schooling.26 27 In legal contexts, while the word "tailored" is a rare find, notable court decisions, including Mississippi University for Women v. Hogan incorporate similar discourse describing this idea as "fixed notions concerning the roles and abilities of males and females" in attempt to justify separate learning environments.28 The term “tailored” is important because of its contrast to the idea of a "substantially equal" learning environment, an ideal that has been the legal precedent for many education-based cases. Ultimately, court decisions, including the one made in United States v. Virginia, continue to reaffirm the sentiment originally formulated by Justice Ginsburg that "'inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity."29 The consequences of this "tailoring" is not that students are merely being "equally" segregated, but rather that segregation leads to different instruction, which has indeed been explicitly advertised by numerous public institutions. A few examples of public single-sex schools that have continued to segregate and unlawfully provide an unequal education on the basis of gender give valuable insight into the critical issues associated with this style of education. Wood County Board of Education vs. Doe centered on accusations of sex-segregation and discrimination against women due to differences in teaching found across sex-segregated schools in the Wood County School District of West Virginia.30 Because of this case, the Wood County Board of Education agreed to remove its K-12 single-sex schools from its district, conceding blatant issues with teaching differences across supposedly "equal" sex-segregated schools. Despite these promising results brought by the courts, schools across the country continue to "tailor" their 26

Blythe Grossberg, 4 Advantages of Single Sex Schools, THOUGHTCO., (Jun. 10, 2017), https://www.thoughtco.com/advantages-of-single-sex-schools-2774613. 27 Amanda Morin, Are Single-Sex Classrooms Better for Boys?, VERY WELL FAMILY, (Feb. 22, 2018), https://www.verywellfamily.com/single-sex-classrooms-620838. 28 Mississippi University for Women v. Hogan, 458 U.S. 718, 723 (1982). 29 United States v. Virginia, 518 U.S. 515, 529 (1996). 30 Wood County Board of Education vs. Doe, D.W.V. 11 (2012).

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schools to exacerbate sex-assigned gender segregation. The American Civil Liberties Union (ACLU) found that in Louisiana sex-segregated public schools boys "read 'Where the Red Fern Grows' while girls read 'The Witch of Blackbird Pond,' because boys apparently like hunting and dogs, but girls prefer love stories.'"31 Such blatant examples of "tailoring" make sex segregated schools inherently unequal continue to violate Title IX regulations and the numerous Supreme Court decisions mentioned previously in this article. Even after the Wood County Board of Education decision, numerous public institutions continue to publicly offer "tailored" educational benefits through single-sex schools.32 The National Association For Single Sex Public Education (NASSPE), which assists over 500 schools that offer single-sex educational programs in the United States, writes that these schools will offer "custom-tailored learning and instruction" for students.33 While organizations like NASSPE continue to use Title IX 1681.a.1's narrowing to only "institutions of vocational education, professional education, [sic] graduate education, and to public institutions of undergraduate higher education," the Supreme Court has dissented to this narrow scope. Notably, in the Grove City College decision, the Supreme Court seemingly expanded the scope of Title IX via Ginsburg's skeptical scrutiny rule and the Equal Protection Clause.34 When Title IX legislation has failed to prevent sex discrimination in schools, the judiciary has supplemented Title IX by broadening the scope and scrutiny of the 14th Amendment. IV. Addressing Queerness in Educational Law Notably, in stark contrast to lower state legislation and court decisions in California, Oregon, and Washington, among others, the Supreme Court 31

Sophie L., The Dangers of Single-Sex Education, ACLU, Aug. 13, 2013. Blythe Grossberg, 4 Advantages of Single Sex Schools, THOUGHTCO., (Jun. 10, 2017), https://www.thoughtco.com/advantages-of-single-sex-schools-2774613. 33 Advantages for Girls, NASSPE, http://www.singlesexschools.org/schools-schools.htm. 34 20 U.S.C. § 1681 (1972). 32

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has failed to include genders outside the traditional male-female sex assignments in every opinion known to-date. The first legal changing of gender on any state-issued identification card was affirmed in Oregon, by the Jackson County Circuit Court, in June of 2016.35 While this state-based legal precedent is still rather weakly established both socially and legally, it is obvious that gender is becoming broader in scope in the context of the law.36 Non-binary individuals are those who fall outside the traditional malefemale sex-based assignment gender-identification. One of the most prominent legal distinctions to be made is between the definitions of "sex" and "gender." According to the World Health Organization (WHO), gender is defined as "the socially constructed characteristics of women and men." The WHO goes on to note that "it is important to be sensitive to different identities that do not necessarily fit into the binary male or female sex categories."37 This definition emphasizes the socially-constructed nature of gender, in contrast to "sex," which Oxford Dictionaries summarizes as the two male-female categorizations that are formulated simply "on the basis of their reproductive functions."38 In various courts, these distinctions have been blurred and have not been clearly settled by the Supreme Court. For example, the Title IX Amendments of 1972 only uses the word "sex," bringing notable points of conflict with queer, transgendered, and non-binary advocacy interest groups who seek a more inclusive revision. This pervasive us of "sex" at the federal level of government stands in contrast to various state codes, where gender has become more prominent in documentation and state-issued identity cards. In California, Senate Bill (SB) 179 has now enabled individuals to receive a third gender classification, marked by an "X," on almost all state35

Brigit Katz, Oregon Becomes First State to Issue Gender Non-Binary ID Cards, SMITHSONIAN (Jun. 16, 2017), https://www.smithsonianmag.com/smart-news/oregonbecomes-first-state-issue-gender-non-binary-id-cards-180963739/. 36 Corinne Segal, Oregon Court Rules That ‘Nonbinary’ is a Legal Gender, PBS (Jun. 11, 2016), https://www.pbs.org/newshour/nation/oregon-court-rules-that-nonbinary-is-alegal-gender. 37 World Health Organization, http://www.who.int/gender-equityrights/understanding/gender-definition/en/. 38 Oxford Dictionary, https://en.oxforddictionaries.com/definition/sex.

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issued documentation.39 This same bill has created opportunities for transgendered citizens to receive state identification cards that accurately reflect their self-assigned gender.40 The conglomeration of these various laws, decisions, and litigation make a compelling case that these identities have an obligation to be included in legal discussions surrounding single-sex schools. Conclusion Examining the numerous precedents established by the Supreme Court and legislation like Title IX in the context of social movements for gender equity around the world, this article challenges whether the existence of public single-sex schools that claim to "tailor" their education toward a specific gender identity is lawful. It is diďŹƒcult to imagine a situation where, legally, single-sex schools that have practically any public association can advertise and practice "tailored" instructional practices while also meeting the "substantially equal" test clearly established in the multitude of court decisions discussed. Ultimately, even if the courts were to continue to ignore the identities of non-binary and transgender individuals, the legal-standing for practically any single-sex school that utilizes and advertises "tailored" educational tactics is entirely non-existent. Regarding transgender and non-binary individuals’ place in the fight over single-sex schooling, if the Court's "substantially equal" jurisprudence eventually includes gender as a multifaceted, fluid, and self-described identity rather male-female sex-assigned binary, a legal controversy is destined to arise that fundamentally questions the existence of binary-based public single-sex schools. If, as expressed in this paper, a "substantially equal" test is applied to such schools, classrooms, or any sex-segregated educational institution, the legal recognition of gender identities beyond the male-female binary would require the establishment of a "substantially equal" alternative for the excluded gender(s). What is the legal system to do 39 40

S. B. 179, 2017 Leg., Reg. Sess. (Ca. 2017). Transgender Law Center, https://transgenderlawcenter.org/archives/13524.

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with single-sex educational institutions based on the gender binary when not all students fall into that binary? In other words, where do these non-binary and transgender students fall in an educational system that never included them in the first place? Indeed, the crux of the decision in Brown was based on the "psychological knowledge" and intangible eects of segregation, especially for students who have already been marginalized otherwise.41 The Court, whether it be through the Virginia decision that raised the threshold by which a single-sex institution can exist, or the Grove City College decision that broadened the scope of Title IX, has endowed itself with the responsibility of requiring equal protection in education for non-binary and transgender students. This article hopes that these legal precedents demonstrate the need to recognize the identities of transgender and nonbinary students and provide them access to an equal educational environment as required by law.

41

Brown v. Board of Education of Topeka, 347 U.S. 483, 495 (1954).

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UCLA UNDERGRADUATE LAW JOURNAL Kristen Schnell*

California’s Conservation (Fire) Camps: Grounds for Protection Under the Fair Labor Standards Act ABSTRACT. California’s Conservation (Fire) Camps are a continuation of the United States’ long history with prison labor and fall victim to some of the same offenses. The ceiling for hourly wages is set at a maximum of two dollars for dangerous work controlling wildfires. Given the legality of prison labor rooted in both the Thirteenth Amendment and legislation during the latter half of the twentieth century, it would be easier to reform the terms of this prison labor rather than the system itself. Enforcing minimum wage within Conservation Camps is one such route. While judicial precedent has progressed over the last half-century to the point that arguments for including privately-contracted prisoners under the protections of the Fair Labor Standards Act (FLSA) have been successful, the question remains of whether the same standards apply to government-contracting of prison labor. The criteria of the “economic reality” test of employment set forth in Henthorn v. Department of Navy, however, provide favorable grounds to argue for extension of FLSA protection to state-contracted laborers in Conservation Camps. Given that California’s Conservation (Fire) Camps meet the Henthorn requirements of voluntary labor paid by a non-prison source, laborers in the camps should be entitled to minimum wage and overtime pay under the FLSA.

*

Kristen Schnell is a fourth year political science and German major. After a gap year in Washington, D.C., she plans to attend law school and pursue a career in the field of civil rights law.

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Introduction Prison labor has evolved through the nineteenth and twentieth centuries to the current system of both contracted prison labor as well as a system of state-use.1 These two systems allow for the labor of inmates to be contracted out to private and public institutions, respectively. Despite the prohibition of systems that allowed for egregious exploitation, such as convict leasing, prisoners engaging in labor continue to face inequities.2 Low wages and lack of vocational or educational programming are among the most pressing issues. District courts have regularly acknowledged this fact in extending workers' rights protections granted in the 1938 Fair Labor Standards Act (FLSA) to prison laborers under contract with private companies.3 Although there has been moderate success in FLSA extension in cases involving privately-contracted prison labor, gaining FLSA protections for work contracted by governmental entities has proven more difficult.4 California’s Conservation (Fire) Camps serve as one such example of questionable wage practices in the context of state-contracted prison labor. Conservation camps have gained more scrutiny in 2017 due to the unusually severe drought conditions and higher instances of wildfires. Roughly 4,000 inmates a year are employed by the state to engage in dangerous work on the frontlines of wildfire management, all for around $2 a day.5 A few cases in the 1990s, such as Henthorn v. Department of Navy6 and Barnett v. Young Men’s Christian Association (YMCA)7 provide a framework with which to 1

E. T. Hiller, Development of the Systems of Control of Convict Labor in the United States, 5 J. CRIM. L. & CRIMINOLOGY 241, 242 (1914). 2 Jason Browne, Rooted in Slavery: Prison Labor Exploitation, 17 RACE, POV. & ENVT. 78 (2010). 3 29 U.S.C. § 206 (2012). 4 Matthew J. Lang, The Search for a Workable Standard for when Fair Labor Standards Act Coverage Should be Extended to Prison Workers, 5 U. PA. BUS. L. REV. 191, 198-99 (2002). 5 Kamala Kelkar, Incarcerated Women Risk their Lives Fighting California Fires. It’s Part of a Long History of Prison Labor, PBS, (Oct. 22, 2017, 1:39 PM), https://www.pbs.org/newshour/nation/incarcerated-women-risk-their-lives-fightingcalifornia-fires-its-part-of-a-long-history-of-prison-labor. 6 Henthorn v. Dept. of Navy, 29 F.2d 682 (D.C. Cir. 1994). 7 Barnett v. Young Men’s Christian Ass’n, 1999 U.S. App. LEXIS 3412 (8th Cir. Mar. 4, 1999).

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evaluate modern FLSA claims for prison labor and thus could serve as a basis by which to argue for the extension of FLSA protection to the camps. This article explores such a possibility, which would allow prisoners the same protections oered to other voluntary laborers, such as minimum wage and overtime pay. The article will begin by providing a brief overview of prison labor history and the subsequent legal justification for its existence. With this context established, the article will review case law of FLSA claims in prison labor, both inside and outside prisons, before ending with an examination of Conservation Camps and their viability for FLSA protection. Having analyzed the characteristics of Conservation Camps, I argue that the camps could fit the criteria of voluntary labor paid by a non-prison source, which Henthorn establishes as necessary to claim FLSA protection.8 I. Overview of Prison Labor A. History of Prison Labor Prison labor has existed in the United States prior even to its independence. Under British authority, labor was utilized as reparations for stolen goods.9 This practice came to an end with the start of the eighteenth century, after which emerged the prevailing notion that prison costs should be paid for through the labor of inmates themselves.10 To do so, prisons utilized a public account system of prison labor, under which they sold prison-made goods directly to the free market. Challenges in transporting these goods and public stigma attached to what were seen as inferior goods quickly made this system unsustainable.11 The state thereafter relied predominantly on a contract system of labor, allowing outside private

8

29 F.2d at 686. Hiller, supra note 1, at 242. 10 Id. at 246. 11 Id. at 247. 9

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companies to hire the labor of inmates within prison walls.12 Equipment was housed within prisons and overseen by either an agent of the company or the prison guards themselves. During this period of the late 1800s, prisoners were also leased out to companies, a system which was most prominent in the post-Civil War South.13 Leasing allowed companies to have full control of prisoner conditions, from housing to punishment, as they spent the duration of the lease outside prison walls and in the care of the company.14 Beginning with the 1880s, the contract system was slowly abolished.15 It took much longer for the lease system to be eradicated due to its extremely lucrative nature, and so it survived until the 1930s.16 The contract system was argued to intervene with the free market economy, while the lease system was largely made illegal due to Eighth Amendment17 violations. Housing and work conditions under the lease system were widely found to fit the test of “cruel and unusual punishment.”18 Legislation of the 1930s solidified the banning of the contract system, preventing large government contracts19 and prohibiting the interstate transportation of prison-made goods.20 Such was the state of the system until the revival of labor contracting in the 1980s. Private contracting was reintroduced with the Justice System Improvement Act of 197921 and the Private Sector Prison Industry Enhancement Certification Program22 that was created the same year. Although this legislation required that inmates be paid the local 12

Henry C. Mohler, Convict Labor Policies, 5 J. AM. INST. CRIM. L. & CRIMINOLOGY, 549 (1925). 13 Browne, supra note 2, at 79. 14 Id. 15 Hiller, supra note 1, at 259-60. 16 Browne, supra note 2, at 79. 17 U.S. CONST. amend. VIII. 18 GEORGE E. SEXTON, NAT’L INST. OF JUSTICE, WORK IN AMERICAN PRISONS: JOINT VENTURES WITH THE PRIVATE SECTOR 2 (1995), https://www.ncjrs.gov/pdffiles/workampr.pdf. 19 Walsh-Healey Public Contracts Act of 1936, 41 U.S.C. §§ 6501-6511 (2012). 20 Ashurst-Sumner Act, ch. 412, 49 Stat. 494 (1935) (codified at 18 U.S.C. §§ 1761-1762 (2012)). 21 Pub. L. No. 96-157, § 402, 93 Stat. 1167, 1181 (codified as amended at 42 U.S.C. §3789 (2012)). 22 SEXTON, supra note 18, at 3.

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prevailing wage, a large loophole allowed for exploitation: deductions from the wage would be permitted by the presiding prison for taxes, room and board, victims’ compensation, and family support. As a result, modern prison wages average a dollar per hour or less.23 B. The Legality of Prison Systems Although prison labor in the United States has existed for more than two centuries, the first explicit legal endorsement came with the ratification of the Thirteenth Amendment in 1865, which states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”24 The clause “except as a punishment for a crime” rendered forced prison labor an acceptable practice, so long as the prisoner has been sentenced for a crime. Challenges based on the Thirteenth Amendment have ruled practices that resemble chattel slavery or involuntary servitude illegal,25 but hard labor ruled as punishment for a crime remains protected under this amendment. Such has been the basis over the past forty years for rejecting many claims requesting employment protections. If the labor is compelled, traditional free economy protections are argued not to apply. II. Applicable FLSA Case Law A. FLSA Application and Relevant Amendments The Fair Labor Standards Act was passed in 1938 with the goal of creating protections for workers, most notably a minimum wage and overtime pay.26 The major push for the bill came during the Great Depression from President Franklin D. Roosevelt, who pointed to the 23

Heather Ann Thompson, The Prison Industrial Complex: A Growth Industry in a Shrinking Economy, 21 NEW LAB. F., 41 (2012). 24 U.S. CONST. amend. XIII. 25 See, e.g., McGarry v. Pallito, 687 F.3d 505 (2d Cir. 2012). 26 29 U.S.C. § 206 (2012).

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almost third of the population in the United States who were “ill-nourished, ill-clad, ill-housed” and argued that “a self-respecting democracy should do justice to its workers.”27 Initially, the Act was designed only to protect private sector employees. The Act set out to define what constituted an employer-employee relationship so as to establish a legal test for the protection of workers. The 1966 FLSA Amendments marked the first time these protections were extended to federal and state employees, though many government employees remained exempt.28 Additional government, state, and local employees were later added with the 1974 and 1985 FLSA Amendments.29 The 1985 Amendments which rendered state and local employees nonexempt30 were the result of the landmark case Garcia v. San Antonio Metropolitan Transit Authority.31 The San Antonio Metropolitan Transit Authority argued it did not have to provide minimum wage and overtime requirements of the FLSA, given a state-owned mass transit system was a “traditional government function,”32 a feature which exempted it from FLSA protection under National League of Cities v. Usery.33 With Garcia, the Supreme Court overturned National League of Cities, stating that the term “traditional government function”34 was “not only unworkable but is also inconsistent with established principles of federalism, and, indeed, with those very federalism principles on which National League of Cities purported to rest.”35 Thus, citing the Tenth Amendment36 as well as the extension of protection to specific subsets of federal and state employees under the 1966 and 1974 FLSA Amendments, the FLSA was extended to 27

John W. Tait, The Fair Labor Standards Act of 1938, 6 U. TORONTO L.J. 192, 197 (1945). Susan Kocin, Basic Provisions of the 1966 FLSA Amendments, 90 MONTHLY LAB. REV. 1, 2-4 (1967). 29 Wage and Hour Division History, U. S. DEP’T OF LABOR, https://www.dol.gov/whd/about/history/whdhist.htm (last visited February 20, 2018). 30 Id. 31 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 32 Id. at 530-31. 33 Nat’l League of Cities v. Usery, 426 U.S. 833 (1976). 34 469 U.S. at 531. 35 Id. 36 U.S. CONST. amend. X. 28

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cover public sector employees in addition to the private sector employees it historically covered.37 The extent to which FLSA protections apply was further settled the same year with the ruling of Tony & Susan Alamo Foundation v. Secretary of Labor.38 The Secretary of Labor brought the case against a nonprofit religious organization, which provided benefits such as food and clothing in lieu of traditional pay.39 The Secretary argued that this substitution violated FLSA requirements of minimum wage, overtime pay, and record-keeping provisions.40 The Court upheld lower court rulings that the FLSA did apply in this case, and most importantly ruled that the mandate of the FLSA is broad, as are the definitions of “employer” and “employee.”41 Essentially, if some class of worker was not explicitly written as exempt in the FLSA or its subsequent amendments and no other legislation ruled them exempt, the class in question should be granted protection. The Court referred to the definitions established in the “economic reality” test of Goldberg v. Whitaker House Cooperative.42 Specifically, the “economic reality” tests defines the term “employer” as “any person acting in the interest of an employer in relation to an employee,” the term “employee” as “one ‘employed’ by an employer,’” and “employ” as “to suffer or permit to work.”43 Congress then solidified the interpretation of this case and Garcia with the 1985 FLSA Amendments.44 These cases are important for understanding the extent to which prison labor can be argued as requiring FLSA protection. They established the tests, which have been subsequently used in determining what is defined as an employer-employee relationship and the “economic reality” test, which reappears in almost all cases examining prison labor. To summarize, after 1985, FLSA protection was extended to both private and public sector 37

469 U.S. at 554-56. Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290 (1985). 39 Id. at 292. 40 Id. at 293. 41 Id. at 306. 42 Id. at 293-94; Goldberg v. Whitaker House Coop., 366 U.S. 28 (1961). 43 Goldberg v. Whitaker House Coop., 366 U.S. at 31-32. 44 U. S. DEP’T OF LABOR, supra note 29. 38

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employees, Tony required the definition of “employer” and “employee” to be broad, with FLSA exemptions only applying in cases specifically enumerated by the legislation,45 and the “economic reality” test established in Goldberg was applied to determine if a relationship could be constituted as employment.46 Garcia protected state and federal workers,47 which is significant in the case of Conservation Camps given that laborers work for the state of California. Although inmate workers are not explicitly included under the language of the FLSA, Garcia, Tony, and Goldberg provide important grounds on which a prison labor FLSA claim can be argued. B. Bonnette and the “Economic Reality” Test One of the landmark cases in establishing the terms by which to evaluate the types of prison labor are granted FLSA protections was Bonnette v. California Health & Welfare Agency.48 Prior to this case there was limited success in such an endeavor, with courts generally ruling against prison labor coverage.49 Bonnette represented a shift in this narrative and provided terms for the application of the “economic reality” test of Goldberg50 to instances of prison labor. The case itself did not involve prison labor, but rather was a claim against health systems of the state of California, which attempted to evade employer status by providing patients with the funds to pay their caretakers.51 By not directly providing wages, the state tried to avoid FLSA protections, such as overtime pay, as they claimed they were therefore not the employer. The court sought to more clearly define the term “employer,” so such evasions would no longer occur.52 What the court found, relevant to the context of prison labor, was four standards by which to determine if a party could be considered an employer, expanding on Goldberg. These terms 45

471 U.S. at 299-303. Id. at 293. 47 469 U.S. at 555-56. 48 Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983). 49 Lang, supra note 4, at 199. 50 366 U.S. at 31-32. 51 Bonnette v. Cal. Health & Welfare Agency, 704 F.2d at 1467-68. 52 Id. at 1470. 46

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were “whether the alleged employer: (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.”53 As such, entities that met these four criteria were considered employers subject to the dictates of FLSA. These factors became known as the Bonnette factors. The Bonnette factors were instrumental in the ruling of Carter v. Dutchess Community College,54 which is one of the first cases in which it was successfully argued that an inmate could be entitled to FLSA protection. In Carter, the inmate in question worked as a clerk-tutor for a program providing college courses to state prisoners of New York. The Second Circuit rejected the lower court ruling, which stated that because the prison retained “ultimate control” over the employment, the employee was not subject to FLSA protection.55 Instead, the Second Court ruled that “how many typical employer prerogatives are exercised over the inmate by the outside employer, and to what extent”56 should be considered in determining if there is an employer-employee relationship and used the Bonnette factors to define these “typical employer prerogatives.”57 Although the inmate was not successful in securing FLSA protection, the court significantly ruled that FLSA protection could indeed be applied to prison labor should they pass the “economic reality” test.58 Watson v. Graves59 continued this precedent, looking to the Bonnette factors in overturning a lower court decision that rejected an FLSA employer-employee relationship between a Louisiana sheriff who contracted inmates to a construction company.60 Watson marked the first time an inmate was successfully granted “employee” status under the FLSA.61 53

Id. Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984). 55 Id. at 12-13. 56 Id. at 14. 57 Id. 58 Id. at 15. 59 Watson v. Graves, 909 F.2d 1549 (5th Cir. 1990). 60 Id. at 1551. 61 Id. at 1556. 54

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These two cases established favorable precedent for inmate FLSA claims, but the legitimacy of the Bonnette factors as utilized in Carter and Watson was thereafter questioned, and the scope of FLSA prison labor claims narrowed. A series of cases ruled the Bonnette factors widely inapplicable, with Vanskike v. Peters62 effectively nullifying the Bonnette interpretation of the “economic reality” test in most cases of prison labor.63 The issue with the Bonnette factors, the court noted, was that the factors “presuppose[d]” a condition of free labor,64 which often was not the case in prison labor FLSA claims brought before the courts. The core of Vanskike argued against minimum wage protections for the vast majority of prison labor if such labor is completed in service to the prison. The finding ruled: “The courts have not extended the FLSA’s definition of ‘employee’ to cover prisoners who are assigned to work within prison walls for the prison. Indeed, cases like Carter and Watson appear to have proceeded under the assumption that the FLSA would not apply in such circumstances.”65 The court went a step further to claim that even if the in-prison labor was voluntary, the labor could nonetheless have been compelled by the prison, as Illinois law permits the Department of Corrections to assign prisoners to work.66 The relationship between the prison and the prisoner is also not economic in these instances, as it only contributes to internal prison functioning, not a broader economy. This ruling and those that followed continued to rely on the argument that prison labor carried out within prisons, regardless of its forced or voluntary nature and especially in instances involving the day-to-day functions of the prison, has no basis for FLSA protection.67 The subsequent case of Danneskjold v. Hausrath68 made explicit this finding. The Second Circuit ruled in this instance that: “We agree with, and 62

Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992). Lang, supra note 4, at 204-05. 64 974 F.2d at 809. 65 Id. at 808. 66 Id. at 808-09. 67 Id. at 811. 68 Danneskjold v. Hausrath, 82 F.3d at 37 (2d Cir. 1996). 63

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adopt, the reasoning of Vanskike that forced prison labor for the prison is not subject to the FLSA.”69 The court continued, saying, We also believe that so long as the labor produces goods or services for the use of the prison, voluntary labor by the prisoner—such as is involved in the instant matter—is also not subject to the FLSA…The voluntary performance of labor that serves institutional needs of the prison is not in economic reality an employment relationship. The prisoner is still a prisoner, the labor does not undermine FLSA wage structures; the opportunity is open only to prisoners; and the prison could order the labor if it chose.70

Danneskjold looked to the prior cases71 opposing the use of Bonnette factors, and therefore summarizes well the precedent, which established that FLSA, has no legal basis for extension to prison labor that occurs within prison walls. Despite the challenges and constraints that resulted from Vanskike and Danneskjold, Carter and Watson nonetheless provided favorable grounds on which to base prison labor FLSA claims for labor performed outside the prison. The specificity with which cases following Carter and Watson rules prison labor exempt from the FLSA—that is, only that performed inside prison walls and only that which produces goods or services for the function of the prison—and allows for attempts to extend FLSA protection to prisoners performing labor outside these narrow definitions. Vanskike and Danneskjold did not strike down the reasoning in Carter and Watson that prison laborers cannot outright be excluded from the FLSA in all circumstances, especially given the prior precedent of cases like Tony, which call on courts to broadly construe the terms “employee” and “employer” in appeals to the FLSA.72

69

Id. at 42. Id. at 43. 71 See Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993); Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992). 72 471 U.S. at 306. 70

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C. “Economic Reality” Post-Bonnette While Vanskike and Danneskjold did not eliminate the possibility for prison labor to be protected under the FLSA, Danneskjold73 deemed the Bonnette factors inadequate on their own to determine if labor passes the “economic reality” test set forth in Goldberg.74 Danneskjold’s ruling therefore made uniform interpretation of the “economic reality” test difficult. Matthew J. Lang points to two cases which could be useful then going forward: Henthorn v. Department of Navy and Barnett v. YMCA.75 The case of Henthorn76 addressed an FLSA claim brought by Donald Henthorn, a federal inmate who engaged in work outside the prison facility at Millington Naval Air Station. Given the controversy of using the Bonnette factors to determine “economic reality,” the court set as its task “to construct a test that can identify cognizable prisoner claims for minimum wage under the FLSA.”77 Barnett78 then applied the “economic reality” test created in Henthorn and survived scrutiny for FLSA protection. In examining judicial precedent, including all of the above-listed cases, Henthorn established a two-factor test in examining prison labor FLSA claims: (1) the work must not be legally compelled and (2) compensation stems from a non-prison source.79 The reasoning of the first requirement is self-evident. If the labor is compelled as punishment, it is obviously excluded from FLSA protection by way of the Thirteenth Amendment.80 As discussed, the Bonnette factors presupposed a condition of free labor.81 Henthorn therefore provided a more robust “economic reality” test by first examining whether the labor in question was voluntary or not. The second requirement was a response to the claim by the plaintiff, Donald Henthorn, 73

82 F.3d at 41. Id. at 31-32. 75 Lang, supra note 4, at 205-06. 76 Henthorn v. Dept. of Navy, 29 F.2d 682 (D.C. Cir. 1994). 77 Id. at 685. 78 Barnett v. Young Men’s Christian Ass’n, 1999 U.S. App. LEXIS 3412 (8th Cir. Mar. 4, 1999). 79 29 F.3d at 687. 80 U.S. CONST. amend. XIII. 81 Vanskike v. Peters, 974 F.2d at 809. 74

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that because the work took place outside of prison walls, as was the case in Carter82 and Watson,83 it could therefore be subject to FLSA protection. The court in Henthorn disagreed with the plaintiff’s interpretation of those rulings, stating that the “inside/outside-the-prison distinction” of labor is less important than “public/private employer distinction.”84 In both Carter and Watson, the employer of the inmates was a private company, which in part is why Henthorn argued their claims were successful.85 In Vanskike, on the other hand, the court excluded labor where the prison is the employer because “Prisoners are essentially taken out of the national economy upon incarceration. When they are assigned work within the prison for the purposes of training and rehabilitation, they have not contracted with the government to become its employees.”86 Satisfying both of these requirements set forth in Henthorn helps elucidate whether the employment resembles a free market relationship, which is what the “economic reality” test seeks to answer.87 Barnett88 applied the two-prong test of Henthorn to successfully argue for FLSA protection. Matthew W. Barnett, during the term of his sentence for the Missouri Department of Corrections, engaged in a work release program with the YMCA for a pay rate of $1 an hour.89 Looking to the factors set forth in Henthorn, the Eighth Circuit overturned the lower court finding that Barnett could not be deemed an employee, given that (1) the labor he performed with the work release program was voluntary and not mandated in his sentence and (2) supervision and pay were provided directly by the YMCA.90 The court also relied on precedent set forth in Carter and Watson, acknowledging that the above two criteria fit the descriptions in Carter and 82

735 F.2d at 10. 909 F.2d at 1551. 84 29 F.3d at 685. 85 Id. 86 974 F.2d at 810. 87 29 F.3d at 686. 88 Barnett v. Young Men’s Christian Ass’n, 1999 U.S. App. LEXIS 3412 (8th Cir. Mar. 4, 1999). 89 Id. at *1. 90 Id. at *2-3. 83

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Watson, as well as the fact that the suit was brought against a private corporation.91 The finding remained contentious in the following years, though this had to do with Barnett’s fugitive status and not defects of the Henthorn test itself. These two cases therefore help in determining whether future claims could survive scrutiny and successfully argue for FLSA protection. There do not seem to be any significant cases regarding FLSA prison labor claims in the twenty-first century, so these standards will likely be that to which a court refers in the future. As it stands, then, the determination for whether an inmate is entitled to FLSA protection seems to be (1) whether the work is voluntary or mandated and (2) whether compensation is from a nonprison source. III. Conservation (Fire) Camps Conservation Camps, or Fire Camps as they are known colloquially, are under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR) and are assisted in operation by the California Department of Forestry and Fire Protection (Cal Fire), as well as the Los Angeles County Fire Department (LAFD).92 The program was initiated in 1946, following the trend of prisoners being outsourced to road camps, which had begun in 1915. The initial impetus for the creation of the program was the shortage of men to combat wildfires following the resolution of World War II. Today, forty-three adult Conservation Camps exist across California.93

91

Id. at *3. Monte Plott & Matt Wotus, California Inmates Help Battle Raging Wildfires, CNN, (Oct. 18, 2017, 1:22 PM), https://www.cnn.com/2017/10/13/us/california-fires-inmate firefighters/index.html. 93 Philip Goodman, A Brief History of California’s Prison Camps, CAL. DEP’T OF CORR. AND REHAB (June 2010), https://www.cdcr.ca.gov/Conservation_Camps/docs/History_of_firecamps.pdf. 92

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Although restrictions were looser in the past, only the lowest level offenders are now permitted to work in the camps.94 These few are those who have minimum-custody status and have demonstrated good behavior for the prior duration of their prison sentence. Convictions for crimes such as arson, kidnapping, sex offenses, or life sentences are automatically eliminated. In total, the prisoners stationed in these camps comprise a third of California’s wildfire force.95 As many as 4,000 inmates are employed yearly by the state to do this work. The vast majority of the inmates earn around $1.45. A select number of “skilled and experienced” workers can earn the next pay level of $1.67, with the highest level of pay being $1.95 for “a limited number of skilled inmates who have been given special assignment.”96 Camp assignment also provides for a two-day sentence reduction for each day in the camp.97 Inmates are trained by Cal Fire staff and work under professionals of Cal Fire or the LAFD.98 IV. Grounds for FLSA Protection in Conservation Camps A. Voluntary Test The first criteria advanced by Henthorn and Barnett is whether the labor performed is voluntary or mandated.99 Previous cases have struck down FLSA claims on the basis that mandated prison labor falls under protection of the Thirteenth Amendment.100 However, cases following Bonnette showed courts acknowledging the voluntary labor described in the suits provided a valid basis for FLSA protection. Conservation Camps 94

Id. Goodman, supra note 93. 96 Kelkar, supra note 5. 97 Conservation (Fire) Camps, CAL. DEP’T OF CORR. AND REHAB., http://www.cdcr.ca.gov/Conservation_Camps/ (lasted visited February 26, 2018). 98 Plott & Wotus, supra note 92. 99 Barnett v. Young Men’s Christian Ass’n, 1999 U.S. App. LEXIS 3412 at *2; Henthorn v. Dep’t of Navy, 29 F.3d at 686. 100 See Danneskjold v. Hausrath, 82 F.3d 37 (2d Cir. 1996); Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993); Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992). 95

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demonstrably pass this prong of the test for protection. Whereas states such as Arizona compel labor of all prisoners as a feature of their sentencing, California does not engage in such a practice, meaning that all labor performed is at the discretion of the inmate.101 The California Department of Corrections makes it a point, in fact, to convey that the labor performed by prisoners to fight wildfires is entirely voluntary.102 The program is highly selective given the requirements for lowlevel offenses and good behavior, and CDCR prides the program on being desirable as a result of the two-for-one day parole credits in the camps. 103 The credits allow a two-day reduction in the total prison sentence of an inmate for every day they work in the camps. Moreover, the camps are a variation of a non-obligatory work release program, which Henthorn specifically used as an example in which FLSA protection could be argued to apply.104 Thus, considering the fact that California does not impose hard labor as a sentencing practice and the work is explicitly designated as voluntary by the CDCR, Conservation Camps demonstrably pass the test for voluntary labor. B. Source of Compensation The next major criteria presented by Henthorn is that of the source of prison labor compensation.105 Henthorn did not survive scrutiny for FLSA protection as the inmate in question was compelled to work at a government Naval Air Station by the Bureau of Prisons (BOP), who set his pay.106 The court ruled: “Under this analysis, where an inmate participates in a nonobligatory work release program in which he is paid by an outside employer, he may be able to state a claim under the FLSA for compensation at the minimum wage.”107 Exceptions exist where the inmate’s compensation is 101

Kelkar, supra note 5. CAL. DEP’T OF CORR. AND REHAB., supra note 97. 103 Goodman, supra note 93. 104 29 F.3d at 686. 105 29 F.3d at 686. 106 Id. at 686-87. 107 Id. at 686. 102

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set and paid by the custodian—that is the prison—, as this labor is only available to prisoners and often does not contribute to a broader economy. The reason for these exceptions is that such labor does not resemble a freemarket relationship.108 Conservation Camps represent a unique set of circumstances that could potentially allow it to pass this stipulation of scrutiny advanced by Henthorn as well. Though the CDCR controls the pay rate of camp laborers, the camps are funded by both the CDCR, a prison entity, as well as the California Department of Forestry and Fire Protection, a non-prison entity.109 While the custody of the inmates is furnished by the CDCR, the inmates work in the field under the supervision of Cal Fire in tandem with free laborers and are trained at the discretion of Cal Fire.110 The CDCR and Cal Fire therefore share both custody and compensation of the inmates, meaning that the camps are partially controlled by a non-prison source. Additionally, even though a portion of the custody and compensation for the inmates is controlled by the CDCR and though the “public/private employer distinction” takes precedence over the “inside/outside-theprison distinction,” Henthorn makes clear that the resemblance of the employment to a free market relationship supersedes both.111 In Henthorn, the inmate was required to perform hard labor by his sentence and was assigned to the position by the BOP.112 These two factors had a larger impact on the case failing to pass the “economic reality” test, as it clearly did not resemble a free market relationship. The labor was compelled, so the BOP in reality had no duty to pay the inmates in the first place. In contrast, Conservation Camps are voluntary and inmates can enter or leave them of their own volition. Inmates are performing work alongside free laborers, with the only distinction being they return to the camp and are under the custody of the prison at the end of their work day.113 Their work is no less 108

Id. CAL. DEP’T OF CORR. AND REHAB., supra note 97. 110 Id. 111 29 F.3d at 685. 112 Id. at 683. 113 Goodman, supra note 93. 109

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important to the state economy because the CDCR retains custody of them. This point is underscored by the fact that the state regularly touts the amount of revenue it saves by utilizing prisoners to combat wildfires rather than freely-employed firefighters.114 C. Nature of Work Although not explicitly advanced in Henthorn and Barnett, a final point of contention in cases relating to FLSA protection of prison labor is whether that labor is part of a reformative program.115 The state of California would be likely to pursue such an argument, claiming reformation is characteristic of California’s Conservation Camps. The precedent for this exception lies in cases such as Harker v. State Use Industries, where it was ruled that the FLSA did not apply in part because the work did not resemble traditional employment due to the fact that the program in question was reformative.116 In reformative programming, the work is performed for the benefit of the inmate for the purposes of rehabilitation and job training, rather than for the benefit of the employer. Both of those points could, however, be refuted in the case of Conservation Camps. The camps were not created with the goal of reforming prisoners but rather out of necessity for wildfire fighters in the face of a shortage of men.117 In fact, lawyers from the California Deputy Attorney General argued against a proposed program to extend parole credits in 2014 because the state relied on the low-level non-violent offenders who would be affected to work as wildfire fighters.118 The program is therefore viewed as a necessity by the state to control wildfires, and that is expressly its function, not rehabilitation. The possible resulting reformative nature of the work was later cited as a secondary outcome, as the CDCR alleged that those who participated in the program experienced lower rates of recidivism and higher rates of 114

CAL. DEP’T OF CORR. AND REHAB., supra note 97. Harker v. State Use Indus., 990 F.2d 131, 133 (4th Cir. 1993). 116 Id. at 133. 117 Goodman, supra note 93. 118 Defendants’ Opposition to Plaintiffs’ Motion for Further Enf’t Order, at 4, Coleman v. Brown, 28 F. Supp. 3d 1068 (2014) (No. 2:90-cv-00520 KJM DAD P). 115

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employment post-release.119 There exists little data to support this claim, however, as the state has not performed a study on the matter.120 Even if the correlation was proven to be present, lower recidivism and higher employment post-release are likely a result of the requirements to work in the camps, not a result of the labor itself. Inmates eligible for the camps are the lowest level offenders that have behaved well during their sentence and are likely enticed by the two-for-one parole credits.121 These inmates therefore likely have a greater chance of employment due to less serious criminal histories and the fact that lower level offenders are less likely to reoffend in the first place. The reformative results of the camp, then, might well be due to qualities of the inmates that existed prior to their participation in the camps. CDCR would also face difficulty in claiming the camps provide job training, as the work exclusively entails fighting wildfires. Considering many firefighting departments across California do not hire those that have been charged with a felony, a good portion of the camp laborers would be immediately disqualified.122 Rough estimates furnished by the CDCR show only three to five percent of inmates who participated in the camps receiving jobs related to firefighting upon release.123 The camps do not provide for additional job or vocational training,124 so if the sole means by which they could argue they train for jobs is to provide firefighter experience, the training is not meaningful. Therefore, having ruled out both a reformative and job training element of the camps, they stand more as an economic benefit to the state and thus are similar to the traditional defendantemployer relationship necessary for FLSA protection. 119

CAL. DEP’T OF CORR. AND REHAB., supra note 97. Philip Goodman, “Another Second Chance”: Rethinking Rehabilitation through the Lens of California's Prison Fire Camps, 59 SOC. PROBS. 437, 445 (2012). 121 Goodman, supra note 93. 122 Amika Sergejev, Opinion: A Skilled Cal Fire Firefighter as an Inmate, She’s Barred from Career Now That She’s Free, THE MERCURY NEWS, (Nov. 21, 2017), https://www.mercurynews.com/2017/11/21/opinion-a-skilled-cal-fire-firefighter-as-aninmate-shes-barred-from-career-now-that-shes-free/. 123 Goodman, supra note 120, at 445. 124 Id. at 453-54. 120

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Conclusion Labor in California’s Conservation (Fire) Camps is voluntary, partially paid for by a non-prison source, occurs outside of prison walls, and has more of an economic nature than a reformative one. These qualities are what Henthorn125 argued are vital for a successful FLSA prison labor claim after prison labor inside the facility was ruled within purview of the Thirteenth Amendment.126 Given that California’s Conservation (Fire) Camps meet the Henthorn requirements of voluntary labor paid by a non-prison source, laborers in the camps should be entitled to minimum wage and overtime pay under the FLSA. A minimum wage is not only fair for the laborers performing voluntary and dangerous work, but also discourages punitive sentencing and parole practices as the state cannot exploit cheap and readily available labor as easily. Moreover, an extension of FLSA protection to Conservation Camps could provide important precedent going forward to rectify similar instances of unethical prison labor practices across the United States.

125

Henthorn v. Dept. of Navy, 29 F.2d 682 (D.C. Cir. 1994). U.S. CONST. amend. XIII. See Danneskjold v. Hausrath, 82 F.3d 37 (2d Cir. 1996); Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992).

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UCLA Undergraduate Law Journal - Volume XVII  

UCLA Undergraduate Law Journal - Volume XVII  

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