UCLA Undergraduate Law Journal - Volume XVIII

UCLA UNDERGRADUATE LAW JOURNAL VOLUME 18

SPRING 2019

ARTICLES Prescription, Precedent, and Pragmatics: A Three-Fold Argument for Property Rights in Excised Biomaterials Will Ward – UCLA

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The Unconstitutionality of Facial Recognition Software in Schools Avery Horne – UCLA

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Conflict, Citizenship, and Cultural Preservation: A Framework for American Samoa and the Insular Territories Jared Kelly – UC Berkeley

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SEC Regulatory Ambiguity: Why Congress Should Pass New Legislation Regulating Cryptocurrencies Dylan Shamoon – UCLA

79

The Legality of the Systematic Disenfranchisement of Voters in the United States Suzan Bedikian – UCLA

96

Free Speech Versus Preventing Discriminatory Speech: Applying University Speech Codes to Controversial Speakers Karina E. Coltun Schneider – UCLA

117

Analyzing Strict Scrutiny and Race-Conscious Admissions Policies in Higher Education Amanda Lee – UCLA

144

The Second Amendment Outside the Home: The Judiciary and Public Carry in the Post-Heller Era Kyle Quon – UCLA

161

The Constitutionality of Partisan Gerrymandering Wesley Jared Adams – UCLA

179

Abolishing the Statute of Limitations for Felony Sexual Crime Teddi Noel Mattox – UCLA

199

The Role of the WTO in the US–China Trade War Jiaye (Kyle) Hou – UCLA

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The Legal Argument Against Excessive Regulations on Online Vacation Rental Platforms Phillip Leung – UCLA

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UCLA UNDERGRADUATE LAW JOURNAL VOLUME 18

EDITORIAL BOARD

SPRING 2019

Editor-in-Chief Vanessa Young Managing Editor Jamail Gibbs Associate Editors Maana Azar-Chehr Kevin Goh Megan LeGresley Editors Nargiz Ahmedli Tatyana Akbarian Jacqueline Alvarez Yasmine Ardehali Tara Branine Virginia Foggo Karen Funk Carolyn Kraft Gabrielle Rivera Jordan Teshima Nina Tumulak Greg Walsh Anna Yan President Axel Sarkissian Vice President Sareen Ishanyan 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 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 It is with great pride that I present Volume 18 of the UCLA Undergraduate Law Journal. This year, our executive editors pored over the largest-ever pool of applicants to select a cohort of excellent writers and editors; this volume is a testament to their talent, creativity, and dedication.

I am humbled to have worked closely with our writers in exploring their passions and developing their ideas for the twelve diverse articles featured in this volume. The articles tackle several defining issues of our time, from voting rights and free speech to facial surveillance and cryptocurrency regulation. It is my hope that the nuanced ideas and well-researched arguments in the pages that follow will inspire critical thought and discussion on our campus.

As one of the few undergraduate law journals in the country, our journal provides a unique outlet for students to research their interests outside of the classroom in a collaborative environment that promotes growth, fosters constructive criticism, and encourages students to hone their writing skills.

I wish to thank our writers and editors for challenging themselves throughout the writing process and devoting countless hours to making this year’s volume a success.

As my third and final year with the journal comes to an end, I am grateful for the opportunity this space has provided me to grow as a writer, editor, and listener. I am honored to have led our cohort in producing this year’s volume, of which I am truly proud. I look forward to seeing what the future holds for the journal and I am confident it will continue to impress.

Vanessa Young Editor-in-Chief UCLA Undergraduate Law Journal

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UCLA UNDERGRADUATE LAW JOURNAL Will Ward*

Prescription, Precedent, and Pragmatics: A Three-Fold Argument for Property Rights in Excised Biomaterials ABSTRACT. Continuous advancements in science and medicine present a host of legal and ethical controversies. Most central to these issues is the question of whether or not an individual has a property right to his or her excised biomaterials. This article will examine and engage with this question at length, arguing in favor of a property right in excised biomaterials. To this end, the article presents a three-fold argumentative approach: first, it challenges previously conceived definitions of “property” before prescribing a definition that is both grounded in the popular theory of property as a “bundle of rights” and is compatible with evolving science; second, it analyzes court rulings and informed consent legislation to establish a judicial and regulatory precedent for recognizing property rights; and lastly, it discusses pragmatic concerns for recognizing a property right in excised biomaterials.

*Will Ward is a fourth-year English major and philosophy minor at the University of California, Los Angeles. In addition to his work with the Undergraduate Law Journal, he is also a Peer Learning Facilitator at the UCLA Undergraduate Writing Center. Will wants to express his many thanks to Nina Tumulak, whose feedback and dedication were instrumental in the crafting of this article.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction Although Henrietta Lacks was buried in an unmarked grave in 1951, her cells live on to this day.1 Lacks, a poor, black tobacco farmer, was diagnosed with cervical cancer in 1951. During treatment, some of her cancerous cells were taken from her body without her knowledge or consent and sequenced into a cell line for research testing. This cell line, conveniently dubbed “HeLa” after the first two letters of Lacks’s first and last name, was the first immortal cell line.

Because immortal cell lines continuously divide due to mutation, they are especially valuable for medical research.2 Today, the HeLa cell line continues to be fundamental to the scientific community, leading to breakthroughs in diseases like hemophilia, Parkinson’s, and leukemia.3 Scholars have even characterized the HeLa cell line as the genesis of the modern, multi-billion dollar biotechnology industry, which is largely predicated on the buying, selling, and patenting of human bodily materials.4 At the time, Henrietta’s case was the first of its kind. Today, however, nearly 4,000 cell lines are housed in the American Type Culture Collection alone.5 Yet, despite the fact that the cells were removed from her body without her consent, neither Henrietta nor her descendants received any compensation for her contribution to science.6 As HeLa demonstrates, technological advancements in science and medicine have introduced an increasing number of legal, ethical, and scientific questions, many of which remain unanswered.

1

Adeel Hassan, Henrietta Lacks, N.Y. TIMES (2018), https://www.nytimes.com/interactive/2018/obituaries/overlooked-henrietta-lacks.html.

2 See Johns Hopkins Medicine, The Importance of HeLa Cells, https://www.hopkinsmedicine.org/henriettalacks/importance-of-hela-cells.html (last visited March 1, 2019).

3 Id. 4 See, e.g., Immortal Cells of Henrietta Lacks Live on In Labs, NPR (December 13, 2010), https://www.npr.org/2010/12/13/132030076/henrietta-lacks-immortal-cells-live-on-in-labs (“There's now a multi-billion-dollar industry based on buying and selling tissues and cells and patenting genes…and that really all started with [Henrietta’s] cells.”).

5 ATCC, Cell Lines, https://www.atcc.org/en/Products/Cells_and_Microorganisms/Cell_Lines.aspx (last visited Jan. 5, 2019).

6 HASSAN, supra note 1.

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS Most prominently, courts have struggled with determining whether people have property rights in materials removed from their own body, also known as excised biomaterials.

The proprietary status of excised biomaterials has been the subject of extensive legal debate, beginning with Moore v. Regents of the University of California7 and persisting more recently in rulings such as Association of Molecular Pathology v. Myriad.8 This article will engage with this debate at length, arguing in favor of a property right in excised biomaterials. To begin, the article will examine the history of the issue in the courtroom. It will then argue for recognizing a property right in excised biomaterials. To this end, this article offers a three-fold argumentative approach: first, it challenges previously conceived definitions of “property” before prescribing a definition that is both grounded in the traditional notion of property as a “bundle of rights” and is compatible with the demands of modern science and medicine; second, it analyzes court rulings and informed consent legislation to establish a judicial and regulatory precedent for recognizing property rights; and third, it discusses pragmatic considerations for recognizing a property right in excised biomaterials. In light of these three tenants, an individual’s full-fledged property right in his or her excised biomaterials must be affirmed.

I. A Brief History of the Issue in the Courtroom The debate surrounding property rights and its relation to the physical body has a lengthy history within the United States courtroom system.9 A brief overview of this litigation is essential to understand the current status of property rights in excised biomaterials. With the recent emergence of the biotechnology industry and the patentability of biological products, the status of

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Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 125 (Cal. 1990).

Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (June 13, 2013).

9 See, e.g., Ritter v. Couch, 76 S.E. 428, 430 (W. Va. 1912) (“[W]hile a dead body is not property in the strict sense of the common law, it is a quasi-property, over which the relatives of the deceased have rights which our courts of equity will protect.”).

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UCLA UNDERGRADUATE LAW JOURNAL property rights in excised biomaterials remains unclear. The seminal California Supreme Court case Moore v. Regents of the University of California was one of the first cases to deal with property rights in excised biomaterials at length. In this case, Plaintiff John Moore received treatment at the University of California Los Angeles Medical Center for hairy-cell leukemia.10 Defendant, Dr. David Golde, first met with Moore in 1976 and conducted a series of tests on Moore’s bodily substances, confirming the diagnosis.11 Upon examination of these substances, Golde realized that they would provide “competitive, commercial, and scientific advantages.”12 Like HeLa, Moore’s cells were unusual – they created an abnormal protein that could be synthesized as a profitable immortal cell line.13 After repeated requests from Golde, Moore signed a written consent form authorizing the removal of his spleen. However, Golde did not inform Moore of his intention or request permission to conduct further research on the spleen, even after he established a cell line from Moore’s tissue and the Regents applied for a patent on it.14 Golde later sold the cell line to Genetics Institute, a biotechnology company, for at least $330,000 and 75,000 shares in stock.15 At the time of this transaction, various biotechnology firms estimated the value of the cell line to be approximately three billion dollars.16 Moore filed a lawsuit against Golde and the Regents for thirteen causes of action—among them, (1) a breach of fiduciary duty and lack of informed consent,17 and (2) conversion, a strict liability tort that “protects against

10

Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 125 (Cal. 1990).

Id. at 126.

12 Id. 13 J.E. Ferrell, Who Owns John Moore’s Spleen?, CHICAGO TRIBUNE (February 18, 1990), https://www.chicagotribune.com/news/ct-xpm-1990-02-18-9001140537-story.html.

14 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 127 (Cal. 1990).

15 Id. 16 Id. 17 See LEGAL INFORMATION INSTITUTE, Fiduciary Duty, https://www.law.cornell.edu/wex/fiduciary_duty (“When someone has a fiduciary duty to someone else, the person with the duty must act in a way that will benefit someone else…[I]f the fiduciary breaches the fiduciary duties, he or she would need to account for the ill-gotten profit.”).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS interference with possessory and ownership interests in personal property.”18 On the issue of a breach of fiduciary duty and a lack of informed consent, the court found Golde and the Regents liable, holding that in order to fulfill his or her fiduciary duty and obtain informed consent, a physician must “disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect [the physician’s] medical judgment.”19 However, the court denied Moore’s conversion claim; it ruled that Moore did not have ownership in his cells following their removal, and thus upheld the researchers’ patent on his cell line—ironically named the “Mo Cell Line” after Moore himself.20 The landmark decision in Moore initiated a subsequent stream of litigation on property rights in biomaterials at the state and federal levels. For example, in the 2003 Florida district court case Greenberg v. Miami Children’s Hospital, researchers isolated a gene responsible for Canavan disease and applied for a patent on it. As in Moore, the court denied extending a property right to the patients over their tissue.21 Furthermore, the court upheld the researchers’ patent, stating that the researchers who discovered and patented the gene responsible for Canavan disease had ownership over it. In Washington University v. Catalona, the Court of Appeals for the Eighth Circuit again refused to grant patients a property right in their own biomaterials, even when the patients were not informed of the researchers’ economic motives.22 Catalona also acknowledged that the research hospital that stored the excised biomaterials possessed a property right in the physical samples themselves, in addition to the intellectual property right recognized in Moore and Greenberg.23 Lastly, in the 18

Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 135 (Cal. 1990).

Id. at 132.

20 Id. at 136-7 (“To sue for [his cells by] conversion [Moore] must have had an ownership interest in them.”).

21 Greenberg v. Miami Children’s Hospital, 264 F. Supp. 2d 1064 (S.D. Fla. 2003).

22 Washington University v. Catalona, 490 F.3d 667 (8th Circuit 2007).

23 While the court ruled that Washington University “retained absolute possession of the biological materials,” scholars generally agree that the court, at least implicitly, recognizes a property right here. Ghosh maintains this interpretation, stating, “It is apparent the court could 19

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UCLA UNDERGRADUATE LAW JOURNAL 2013 case Association for Molecular Pathology v. Myriad Genetics, the Supreme Court again upheld the patentability of certain biomaterial products, granting property rights to those who conduct research while denying property rights to patients.24 In Myriad, the Supreme Court held that unaltered genes that were simply isolated forms of DNA were “products of nature” and not patentable, but any genes that have been modified and are not naturally occurring are eligible for patent.25 Each of these decisions, from Moore to Myriad, reflects the pervasive, inescapable, and unsettled debate of property rights in excised biomaterials today.

II. (Re)Conceptualizing Property in Biomaterials Although the decisions in Moore, Greenberg, and Catalona all plainly refused to recognize donors’ property rights in their excised biomaterials, the language of property continues to reappear in courtroom proceedings and inform discussion of property rights in bodily materials.26 However, in the absence of any conclusive ruling from the Supreme Court or definitive federal legislation, the implementation of a theory of property in excised biomaterials has been inconsistent.27 Therefore, any compelling solution to the question of property in excised biomaterials must first offer its own definition of “property” applicable to the present issue. The following sections will first refute Moore’s proposed definition of property before prescribing an alternative definition in its place.

not have reached this conclusion without recognizing property rights in human biological products.” Id; see also Samantak Ghosh, The Taking of Human Biological Products, 102 CAL. L. REV. 523 (2014), http://scholarship.law.berkeley.edu/californialawreview/vol102/iss2/3.

24 Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (June 13, 2013).

25 Id. (“We hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.”).

26 See, e.g., Perez v. Commissioner, 144 T.C. 4 (2015) (holding that the earnings from Plaintiff’s “donation” of her eggs are considered taxable income).

27 Cf. Estate of Moyer, 577 P.2d 108, 110 n.5 (Utah 1978) (“[T]he modern view adopted by a majority of courts that have considered the matter recognize that there is a property right of some nature, sometimes referred to as a quasi-property right.”).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS A. Critiquing Moore In order to make a claim for conversion, a plaintiff must have ownership over the property in question. However, Moore cited three reasons for denying the plaintiff ownership over his excised biomaterials: (1) Plaintiff’s claim was not supported by any previous judicial decisions, (2) California statutory law limited a person’s rights in their excised cells, and (3) the patented cell line could not be Plaintiff’s property because it is “factually and legally distinct from the cells taken from Moore’s body.”28 Greenberg later relied on these three principles in its decision, citing Moore’s above reasoning to again deny property rights to the plaintiffs.29 Similarly, the Missouri district court’s decision in Catalona, which was affirmed by the Eighth Circuit Court of Appeals, cited the reasoning of both Moore and Greenberg as “persuasive” and thus denied a property right to the plaintiffs.30 As demonstrated through these influential cases, much of the efforts to conceptualize property in excised biomaterials relied on Moore’s three principles. However, each principle fails to withstand critical evaluation or satisfy an intuitive appeal.

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Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 137-42 (Cal. 1990).

This case is similar to Moore v. Regents of the University of California…[T]he plaintiff in Moore alleged that he had retained a property right in excised bodily material used in research, and therefore retained some control over the results of that research. The California Supreme Court, however, disagreed and held that the use of the results of medical research inconsistent with the wishes of the donor was not conversion, because the donor had no property right at stake after the donation was made…The Court also recognized that the patented result of the research is “both factually and legally distinct from excised material used in the research.”

Greenberg v. Miami Children’s Hospital, 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003).

30 Both the Greenberg and the Moore cases found the research participant to be a “donor” who had parted with any semblance of ownership rights once their biological materials had been excised for medical research…The Court finds their analysis to be persuasive, and in light of its own review of applicable Missouri law, finds that WU has met its burden in establishing ownership of the subject materials and that the RPs [Research Participants] have not put forth adequate evidence to challenge WU's ownership claim. Washington University v. Catalona, 437 F. Supp. 2d, 997 (E.D. Mo. 2006).

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UCLA UNDERGRADUATE LAW JOURNAL I. A Critical Evaluation of Moore’s Principles Each of Moore’s principles fails to withstand evaluative analysis. The first principle claims that a property right cannot be granted because there is no previous judicial decision on the matter. The majority argued that the court should instead look to the legislature to decide on the issue.31 However, the fact that Moore is a case of first impression is not grounds for denying Plaintiff his property rights.32 At the time of its decision, the California Supreme Court ruled on numerous cases of first impression and even integrated its own novel procedures in the absence of legislative policy.33 To suggest that a property right cannot exist because of a lack of judicial precedent is to be willfully ignorant to the many instances in which the court has ruled on cases of first impression.

In its second principle, Moore argues that California statutory law limited a person’s rights in their excised cells so greatly that what is left cannot amount to property.34 In their dissents, Justice Broussard and Justice Mosk focus on the majority’s misapplication of the specific California statutory law (Section 7054.4 of the Health and Safety Code) to deny the plaintiff’s property claim.35 Yet, in addition to the issues raised in these dissents, the majority’s reasoning falls victim to a more general critique as well. Moore’s second principle tacitly relies on the view that legislative restrictions on excised biomaterials are 31

Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 143-4 (Cal. 1990) (“Problems in this area are better suited for legislative resolution.”).

32 See id. at 156 (Broussard, A., dissenting) (“The majority first relies on the fact that ‘no reported judicial decision supports Moore’s claim, either directly or by close analogy.’ By the same token, however, there is no reported judicial decision that rejects such a claim. This is simply a matter of first impression.”).

33 See, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980) (showing that the California Supreme Court applied a new “market share” theory of liability to a personal injury case); see also Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 163 (Cal. 1990) (Mosk, S., dissenting).

34 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 140-1 (Cal. 1990).

35 Id. at 164 (Mosk, S., dissenting) (arguing that Section 7054.4 “permits only ‘scientific use’ of excised body parts and tissue before they must be destroyed…It would stretch the English language beyond recognition, however, to say that commercial exploitation of the kind and degree alleged here is also a usual and ordinary meaning of the phrase ‘scientific use’”); see also id. at 156 (Broussard, A., dissenting) (“Although [S]ection 7054.4 limits a patient’s control over an excised body part…the statute certainly does not suggest that a patient does not have the right to choose among the legally permissible uses of his organ.”).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS sufficient for terminating an individual’s property right. Yet, there are instances where some of an individual’s property rights are limited, but not extinguished altogether. For example, federal legislation like the Gun-Free Schools Zone Act (“GFSZA”) limits a gun-owner’s right to possess or discharge a firearm in a school zone.36 However, it does not follow that the gun-owner no longer owns his or her gun merely because of this restriction; the natural response is that the gun-owner does have a property right over the weapon, which is then restricted through the GFSZA. Similarly, the reasoning put forth by the majority effectively puts the cart before the horse—rather than acknowledge the plaintiff’s property right in his excised biomaterials and then recognize its restriction through California statute, the majority in Moore claims that Plaintiff has no property right in his excised biomaterials because of the statute. This flawed method of reasoning fails to fall in line with legitimate conceptions of property.

Lastly, the majority ruled that, because the Mo cell line developed an abnormal number of chromosomes after being removed from Plaintiff’s body, the cell line is “factually and legally distinct” and therefore cannot be Plaintiff’s property.37 The factual and legal basis for this claim has been convincingly challenged on multiple grounds. For example, Justice Mosk argues that the majority mistreated the facts of the case. He claims that researchers were interested in the ability of the plaintiff’s cell line to produce a protein which, in turn, overproduced white blood cells. Because a change in the number of chromosomes does not affect the cell line’s ability to produce this desired protein, he concludes, “No distinction can be drawn between Moore’s cells and the Mo cell line.”38 Justice Broussard goes a step further in his dissent, arguing that “uniqueness” is entirely irrelevant to the plaintiff’s conversion claim because “ordinary property, as well as unique property, is, of course, protected against conversion.”39 Without sufficiently supporting its claim that the 36

Gun-Free School Zones Act of 1990, 18 U.S.C. 921.

Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 137-42 (Cal. 1990).

38 Id. at 167 (Mosk, S., dissenting).

39 Id. at 157 (Broussard, A., dissenting).

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UCLA UNDERGRADUATE LAW JOURNAL plaintiff’s cells are “factually and legally distinct,” Moore’s third principle arbitrarily recognizes a researcher’s property right in excised biomaterials, while at the same time denying an individual’s property right in his or her own bodily products.

II. Lockean Property and the Intuitive Reaction to Moore On a purely intuitive level, one might rightfully hold that if we had a property right in anything, surely we would have a property right in our own bodies. Based on this intuition, any account of property ought to recognize a prima facie property interest in the body. This notion of property has its roots as far back as John Locke, who states in his Two Treatises of Government that “every man has a property in his own person: this no body has any right to but himself.”40 Locke goes on to argue in favor of a natural theory of property, in which an individual comes to own something by mixing his or her labor with the object. Indeed, this theory profoundly influenced common law litigation of the body itself, as American courts denied property rights over corpses by arguing that no mixture of labor had occurred.41 Yet, for all its intuitive appeal and influence on common law jurisprudence, the decisions of Moore, Greenberg, and Catalona abandoned recognizing an individual’s property right in his or her own body.

Despite its venerability, this Lockean notion of property is not without its drawbacks. Many legal scholars have noted the limitations of a common law conception of property in a drastically advanced technological world. 42 By 40 JOHN LOCKE, TWO TREATISES OF GOVERNMENT (1821),

http://www.bartleby.com/169/205.html.

41 See, e.g., Williams v. Williams (1882) 20 Ch. D. 659.

42 See, e.g., Samantak Ghosh, The Taking of Human Biological Products, 102 CAL. L. REV. 524 (2014), http://scholarship.law.berkeley.edu/californialawreview/vol102/iss2/3 (“Rapid advances in medical science and biotechnology continue to redefine the various ways the human body [and parts thereof] can be perceived and valued…We cannot continue to rely on seventeenth-century definitions to solve twenty-first century problems.”); see also B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. MED. ETHICS, 210 (2006) (“For the purposes of bioethical analysis it is particularly unfortunate that the natural rights account of

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS proposing a theory of property that uncompromisingly grants all property rights to the individual who mixes his or her labor with it, Locke’s view is unable to adequately account for the many practical and nuanced forms of property that presently exist. For example, property in excised biomaterials is not simply allor-nothing, as Locke would have it—it can range from intellectual property protected by patents to physical ownership over the material tissue.43 However, as will be argued in more detail, today’s predominant “bundle of rights” theory offers a general framework for resolving the limitations of the Lockean view and additionally satisfies the needs of property in a modern, technologicallyadvanced society.

B. The Bundle of Rights and Biomaterials In the absence of either convincing reasoning or an intuitive appeal, the flawed conception of property put forth by Moore and adopted in subsequent cases must be re-conceptualized. In modern jurisprudence, the courts have overwhelmingly considered property within the metaphorical framework of a “bundle of rights.”44 On this account, property is not simply an all-or-nothing right, but is instead a collection of rights (often referred to as “sticks” in the metaphor), such as the right to possess or the right to use. Like a bundle of sticks, these rights can be disassembled and redistributed amongst multiple parties. For example, while one person may have the right to possess a given property, another person might have the right to use it, such as when a person rents a car from a dealership. Indeed, even cases like Moore and Catalona frame their

property [i.e. Locke’s account of property] is an all or nothing theory with respect to the contents of property rights.”).

43 Compare Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (June 13, 2013) (acknowledging the patentability of certain cell lines) with Washington University v. Catalona, 437 F. Supp. 2d 997 (E.D. Mo. 2006) (granting the Washington University hospital a property right over the physical tissue samples).

44 See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (stating the right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property”).

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UCLA UNDERGRADUATE LAW JOURNAL discussion of property within the language of the Bundle of Rights theory. 45 Drawing on legal scholarship, namely Jane Baron’s review of the Bundle of Rights theory of property46 and Björkman and Hansson’s analysis of the Bundle of Rights metaphor within the framework of biomaterials,47 this section adopts and reconfigures the principles of the Bundle of Rights theory. In doing so, it offers a more appropriate and comprehensive alternative to Moore’s procedure for conceptualizing property in biomaterials.

I. Features of the Bundle of Rights In her explication of the Bundle of Rights theory of property, Baron cites four of the theory’s key features. First, the Bundle of Rights theory specifies the legal relations of parties in property arrangements.48 Baron states, “The bundleof-rights metaphor permits teasing out the different facets of ownership in these complex arrangements.”49 Because biomaterials can be sold, donated, and even patented, the Bundle of Rights theory offers an elegant scheme for integrating these components. Second, the Bundle of Rights theory is fluid.50 By accounting for how property law ought to function given certain normative analyses, the Bundle of Rights theory is able to appropriately accommodate change. In the realm of excised biomaterials, this feature is especially valuable, as it allows a theory of property in excised biomaterials to adjust to a rapidly developing

45

See, e.g., Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 141 (Cal. 1990) (noting that California statute had eliminated “so many of the rights ordinarily attached to property”); see also Washington University v. Catalona, 490 F.3d 675 (8th Circuit 2007) (“Nor did the [research participants] retain the right to direct or authorize the use, transfer, or destination of the biological materials after their donation.”).

46 Jane B. Baron, Rescuing the Bundle-of-Rights Metaphor in Property Law, 82 U. CIN. L. REV 57 (2013).

47 B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. MED. ETHICS 210 (2006).

48 Jane B. Baron, Rescuing the Bundle-of-Rights Metaphor in Property Law, 82 U. CIN. L. REV 79 (2013).

49 See id. at 80.

50 See id. at 83 (discussing the example of changes in normative choices concerning property in landlord/tenant law, Baron notes that in the past, “[t]he landlord’s bundle of rights did not require the landlord, in making decisions about property, to take the tenant’s interest into account”).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS biotechnology industry. Third, this theory offers a framework for assessing whether the relationships created by property are ethically or morally permissible.51 Given the strong moral reactions from both the judiciary and the public to the debate surrounding property rights in excised biomaterials, the value of this social component is self-evident.52 Lastly, the Bundle of Rights theory forces the production of information relevant to a given issue.53 While the bundle of rights alone does not offer an answer to a property dispute, it functions “to produce information that will make it possible to apprehend these questions.”54 As a debate firmly rooted in technological verbiage, this ability to produce pertinent information is especially advantageous. Although each of these features dovetails nicely with the issue of excised biomaterials, they do not by themselves answer the pressing question of which rights a person ought to have with respect to these biomaterials.

II. A New Bundle for Biomaterials An effective Bundle of Rights theory must therefore offer a procedure for assessing which rights a person has with respect to his or her excised biomaterials. Legal scholar Tony Honoré famously separated each of these “sticks” into an amalgam of eleven rights. In the spirit of Honoré’s analysis, later scholars have attempted to transpose these eleven rights directly onto excised biomaterials to argue in favor of a property right in them.55 However, the present complexities of the biotechnology industry introduce new and unique property arrangements, normative issues, and social relations into the 51

See id. at 85.

See, e.g., Rebecca Skloot, Your Cells. Their Research. Your Permission?, N.Y. TIMES (Dec. 30, 2015), https://www.nytimes.com/2015/12/30/opinion/your-cells-their-research-yourpermission.html (“People have told me by the thousands, and numerous public opinion studies find the same: They want to know if their biospecimens are used in research, and they want to be asked first.”).

53 BARON, supra note 48.

54 Id. 55 See, e.g., Muireann Quigley, Property and the Body: Applying Honoré, 33 J. MED. ETHICS 613 (2010).

52

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UCLA UNDERGRADUATE LAW JOURNAL discussion of property.56 Due to these complexities, it is necessary to reconceptualize some of Honoré’s traditional rights into a modern context.

Legal scholars Björkman and Hansson cogently adapt the conventional features of the bundle of rights to fit the issue of property in excised biomaterials.

To this end, Björkman and Hansson cite five immutable principles for bodily rights. From these principles, and the more traditional “sticks” proposed by Honoré, they then derive a list of seven rights associated with excised biomaterials. Equipped with these five principles and seven rights, the pair propose the following procedure: “For each type of biological material under consideration, the five principles… guide a decision on which of the [seven] components… should be included in an appropriate bundle of rights for the type of material in question.”57 This procedural model re-configures the Bundle of Rights theory into the debate surrounding excised biomaterials. Through this procedure, one can answer the secondary question of whether a given bundle should be considered a property right on a case-by-case basis.

The first principle is that informed consent must be obtained before any material can be taken from a person’s body.58 Assuming informed consent is met, the second principle states that bodily material can be removed for therapeutic advantages to the individual.59 The first two components of the bundle of rights in excised biomaterials are derived from these principles. These components are (1) the right to security in life and (2) the right to security after death.60 These two rights have analogs in the traditional “right to possess” and

56

See supra Part III., Section B., Subsection 1.

BJÖRKMAN & HANSSON, supra note 47.

58 Id. at 213 (noting that there may be some peripheral exceptions to this principle, such as “the treatment of patients unable to give informed consent”).

59 Id. 60 Id. at 212 (“[A person has rights] to keep a [body part], and not have it removed or destroyed [and to ensure] that a [body part] is buried or disposed of in the way that [they wish].”).

57

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS “right to use” that have been tied to property in the courtroom.61 In fact, these two components are largely already recognized in United States law.62 The third principle says that the therapeutic removal of a body part for the advantage of other persons is permitted, so long as it does not cause “serious or disproportionate harm” to the donor.63 This principle implies (3) the right to donate for removal in life and (4) the right to donate for posthumous removal.64 Furthermore, this principle is compatible with, but does not necessarily entail, (5) the right to sell for removal in life and (6) the right to sell for posthumous removal.65 Fourth, no exploitation can occur when dealing with excised biomaterials and their transactions.66 Importantly, this principle provides an empirical basis for determining whether (5) the right to sell for removal in life and (6) the right to sell for posthumous removal should be included in the bundle of rights.

Additionally, this empirical evaluation can be extended to the final component in the bundle of rights for excised biomaterials, (7) the right to income.67 Thus, if the sale of an excised biomaterial or the profits that one might obtain from it are deemed exploitative, then the right to sale or the right to income cannot be a part of that person’s bundle of rights. For example, in Moore, Plaintiff’s excised biomaterials were removed for purely therapeutic reasons—Moore needed his cancerous spleen removed for his own well-being. Because the removal of his cells was medically necessary, the monetary value of Moore’s cells had no

61

GHOSH, supra note 41 (citing Dolan v. City of Tigard, which states that “the right to exclude is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property’”).

62 See supra text accompany note 41 (citing, for example, cremation rights which “recognize the right to dispose of our body”).

63 BJÖRKMAN & HANSSON, supra note 47 at 213.

64 Id. at 212 (“[A person has rights] to give up a [body part] without remuneration, to be removed in [their] lifetime [or] after [their] death.”).

65 Id. at 212 (“[A person has rights] to give up a [body part] against remuneration, to be removed in [their] lifetime [or] after [their] death.”).

66 Id. at 213.

67 Id. at 212 (“[A person has] the right to receive the profits obtainable from the use of a biological material.”).

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UCLA UNDERGRADUATE LAW JOURNAL bearing on his decision and was therefore not exploitative. Although Plaintiff’s (5) right to sell his biomaterials to the hospital after surgery may be properly contested on other grounds, he surely possessed at least (7) a right to the income generated from his excised biomaterials.

Lastly, the fifth principle states that the system of legal rights ought to encourage an efficient distribution of biomaterials for therapeutic purposes according to patient needs.68 Because Moore’s ability to share in the profits has no direct bearing on the hospital’s ability to distribute his biomaterials for research, this fifth principle again points to recognizing at least components (1) through (4) and (7) in Plaintiff’s bundle of rights in his excised biomaterials, while components (5) and (6) are again disputable. However, even if the bundle in question does not include the right to sell, a property right can still exist in its absence. In fact, there are many instances in which the right to sell property is regulated, but a true property right nevertheless exists.69 Similarly, in Moore, these components should be understood as sufficient for deeming the plaintiff’s bundle of rights as constituting a property right.

This assertion of a property right in this case is not atypical. The majority of standard, excised biomaterial cases put through this procedure would yield a collection of rights that warrant the status of property. This result is itself rooted in a rich theoretical framework that recognizes property in excised biomaterials as a “bundle of rights,” while adhering to meritorious ethical principles and adapting to the unique challenges presented by advances in science and medicine. Through this procedural framework, excised biomaterials warrant treatment as property of the individual from whose body they originated.

III. Precedent for Property in Excised Biomaterials As argued previously, the person from whose body an excised biomaterial originated routinely retains a sufficient bundle of rights that validates the

68

Id. at 214.

GHOSH, supra note 41 (citing the California Fish and Game Code’s regulation that limits the right to sell one’s property, which “prohibits a fisherman from selling caught fish”).

69

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS biomaterial(s) as his or her property.70 In addition to this theoretical justification, judicial and regulatory precedent for recognizing a property right in excised biomaterials also exist. First, attention is directed towards the judicial system’s dichotomous treatment of biomaterials within the realm of patent law.

Following this, analysis will turn to the language and implications of the law as it appears in the preeminent regulation for informed consent, known as the Federal Policy for the Protection of Human Subjects, or simply the “Common Rule.” Importantly, the argument here is not that excised biomaterials satisfy the conception of property,71 nor that there reasonably ought to be such a property right72—instead, the claim is that relevant court rulings and legislation establish a precedent for recognizing a property right in excised biomaterials.

A. Inconsistencies in Judicial Decisions Over the course of litigation on excised body materials, the courts have maintained that researchers can patent excised biomaterials, but the individual patients cannot retain possession over them.73 Effectively, Moore states that the patent itself extinguishes the plaintiff’s rights to receive any financial compensation for the commercial success of the cell line. The court holds this position without citing any legal authority on the matter and in spite of the fact that the cell line originated from the plaintiff’s excised biomaterials.74 Some may argue that this apparent discrepancy can be resolved by distinguishing intellectual property from physical property. Yet, as similar cases reflect, the courts have even extended a physical property right to researchers and hospitals while denying it to the patient.75 Ironically, the majority in Moore previously 70

See supra Part III., Section B., Subsection 2.

See supra Section III for this argument.

72 See infra Section V for this argument.

73 See, e.g., Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (June 13, 2013).

74 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 168 (Cal. 1990) (Mosk, S., dissenting).

75 See, e.g., Washington University v. Catalona, 490 F.3d 667 (8th Circuit 2007); see also Radhika Rao, Informed Consent, Body Property, and Self-Sovereignty, 44 J.L. MED. & ETHICS 437 (2016), https://repository.uchastings.edu/faculty_scholarship/1535 (“But even physical body parts 71

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UCLA UNDERGRADUATE LAW JOURNAL asserts the importance of precedent, but also makes an exception to protect the researcher’s patent interest.76 And although the court should not shy away from cases of first impression, it cannot categorically deny an individual a property right in the cell line produced from his or her own tissue without proper justification.

Altogether, the courts have extended a physical property right for excised biomaterials to researchers and hospitals, but deny this same right to the supplying individuals. In justifying these rulings, courts have cited the desire to create “incentives that lead to creation, invention, and discovery,”77 while also noting fears that granting a property right to individuals would lead to commodification of the body.78 These two justifications are inconsistent; while one employs the concept of commodification to validate a researcher’s property claim, the other denies a patient’s property claim by the same token. This reasoning effectively confers a right to share in the profits to all except those individuals from whose bodies the biomaterials originated.

Rather than hold this dichotomous position without proper support, the courts should grant an individual property rights over his or her excised biomaterials. Interestingly, courts have already acknowledged a person’s right to sell biomaterials such as stem cells. In Flynn v. Holder, the Court of Appeals for the Ninth Circuit examined the National Organ Transplant Act (“NOTA”), legislation which bans the sale of human organs.79 The court held that NOTA did not prohibit compensation for a donor’s stem cells, granting the donor a right to sell his or her cells.80 Flynn was primarily concerned with the limitations may receive property protection when they are in the possession of a university or scientist rather than an ordinary person, which suggests that the divergence lies deeper than a distinction between tangible body parts and intellectual property in the body.”).

76 See supra Part III., Section A. 77 See, e.g., Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2116 (June 13, 2013).

78 See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 148 (Cal. 1990) (Arabian, J., dissenting) (“Plaintiff…entreats us to regard the human vessel — the single most venerated and protected subject in any civilized society — as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much.”).

79 See 42 U.S.C. §§ 273-4 (2012).

80 Flynn v. Holder, 684 F.3d 852 (9th Cir. 2012).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS of NOTA and does not explicitly refer to the stem cells as “property.”

However, by acknowledging an individual’s right to donate stem cells, Flynn affirms an individual’s right to possess and use his or her stem cells.

Furthermore, Flynn also explicitly establishes an individual’s right to sell and receive a profit from his or her stem cells. By recognizing the right to sale, in addition to the right to use and possess, Flynn unmistakably establishes a donor’s full-fledged property right in his or her stem cells. Indeed, through cases like Flynn, the judiciary already has legal precedent to draw upon in order to grant a property right in excised biomaterials—it need only extend this right to explicitly cover all biomaterials, not just blood or stem cells. The judiciary should adopt this position to build upon judicial precedent and effectively remedy its inconsistent treatment of property with respect to patients and patent-holders.

B. Informed Consent Legislation Entails Property Rights The “Common Rule” was first enacted in 1981 by the U.S. Department of Health and Human Services. It is a rule within the Code of Federal Regulations that governs “all research involving human subjects that is conducted, supported, or otherwise subject to regulation by any federal department or agency.”81 Although the Common Rule can only be enforced upon federal research, it remains the most influential legislation for all research on human subjects, and most universities have agreed to extend its parameters to include research not funded federally.82 Like all types of informed consent, the Common Rule entitles individuals from whose bodies excised biomaterials originated to a certain class of rights and obligations. But while all informed consent requirements bestow certain rights to individuals, these rights do not necessarily

81

Radhika Rao, Informed Consent, Body Property, and Self-Sovereignty, 44 J.L. MED. & ETHICS 438 (2016), https://repository.uchastings.edu/faculty_scholarship/1535.

82 See Monica Allen, Human Tissue Ownership and Use in Research: What Laboratorians and Researchers Should Know, 56 CLINICAL CHEMISTRY JOURNAL 1676 (2010).

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UCLA UNDERGRADUATE LAW JOURNAL amount to a property right.83 To do so, a given system of informed consent would have to confer a bundle of rights which collectively merits a full-fledged property right. Upon analysis, the language of the Common Rule does just that, implicitly demonstrating an individual’s property right in his or her excised biomaterials.

As commentators have noted, cases like Moore indicate that questions of ownership do not depend on whether or not a patient consented to the research.84 At the same time, the courts have maintained that an individual’s decision to participate in research is critical to a researcher’s retention of a property right in excised biomaterials.85 However, these two positions are inconsistent—as the Common Rule mandates, researchers cannot conduct research on a patient, and thereby attain ownership over excised biomaterials, if the patient does not consent to the treatment in the first place.86 The judiciary’s treatment of informed consent is dubious, suggesting that the issues of consent and property cannot be so easily isolated from each other.

The Common Rule acknowledges an individual’s right to establish how the biomaterial will be used at the time of removal. In its discussion on informed consent, the Common Rule states, “Before involving a human subject in research… an investigator shall obtain the legally effective informed consent.”87 With regards to the initial use of the biomaterials, the Common Rule states that a research participant must be provided with a statement either confirming or denying that, if identifiable information in the excised biomaterials were to be

83

See CORNELL UNIVERSITY INSTITUTIONAL REVIEW BOARD FOR HUMAN PARTICIPANTS, https://www.irb.cornell.edu/forms/consent.htm (describing the required elements of informed consent as, “full disclosure of the nature of the research and the participant's involvement, adequate comprehension on the part of the potential participant, and the participant's voluntary choice to participate.” Clearly, these rights do not merit a property right on their own).

84 RAO, supra note 81 at 1679.

85 See, e.g., Washington University v. Catalona, 490 F.3d 674 (8th Circuit 2007) (“The circumstances surrounding the RP’s [Research Participants] decisions to participate in genetic cancer research demonstrate the status of the RPs as donors and their intent to make gifts of their biological materials to WU’s medical research activities…[The consent form] characterized the RP’s participation as a ‘donation’ of bodily tissues or blood.”).

86 See CFR Section 46 (2009).

87 CFR Section 46, 20 (2009).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS removed, then the biomaterials “could be used for future research.”88 Additionally, informed consent forms must state that the biomaterials “may be used for commercial profit,” as well as whether an individual will share in the profit.89 After being provided this information, the research participant can then consent to or prohibit the research.

Furthermore, the Common Rule also establishes an individual’s right to control the use of his or her excised biomaterials after removal. It acknowledges an individual’s right to “discontinue participation at any time without loss of benefits.”90 A participant must give broad consent before a researcher can use any excised biomaterials for a purpose other than what was originally established.91 This ability to exercise an informed choice and determine how the biomaterials might be used, both before and after removal, is the same notion of use traditionally found in a property bundle.92 In opposition to decisions like Catalona, the language of the Common Rule not only implies a connection between informed consent and property rights, but also presupposes that a property right exists in excised biomaterials. As argued previously, some of the most fundamental components in the bundle of rights, such as the right to security (1) in life or (2) after death and the right to donate for removal (3) in life or (4) after death, are grounded in an individual’s broader right to use and control the property in question.93 These rights to use and control property should be distinguished from a pure right of bodily integrity, which is concerned with an individual’s rights to “uncontested

88

See id. at 21 (emphasis added).

See id. at 22 (emphasis added).

90 See id. at 21.

91 See id. (exemplifying that researchers need “broad consent for the storage, maintenance, and secondary research use of…identifiable biospecimens”).

92 The right to use evoked in the Common Rule recalls components [1] through [4] of the aforementioned bundle of rights, and even suggests component [7], the right to income. See supra at Part III., Section B., Subsection 2.

93 See supra Part III., Section B., Subsection 2; see also BJÖRKMAN & HANSSON, supra note 47.

89

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UCLA UNDERGRADUATE LAW JOURNAL physical intrusion.”94 By contrast, rights to use and control are features of property.

Collectively, the right to determine the use of one’s biomaterials at the time of removal and the right to control their future use underscore an individual’s property right in these very biomaterials. While the language of the Common Rule avoids explicitly referencing “property” when establishing the rights of patients and research participants, the rights it bestows presuppose that an individual has a property right in his or her excised biomaterials. Although the right to determine use and the right to control future use may cease after the biomaterial is removed after treatment or research, these rights need not necessarily terminate—the Common Rule does not equate the removal of a biomaterial with the cessation of property rights. Any termination of property rights is instead contingent on the particular language of a given informed consent form, which often varies among institutions.

The Common Rule states that informed consent forms cannot contain “any exculpatory language through which the subject or the legally authorized representative is made to waive or appear to waive any of the subject’s legal rights.”95 In its most recent guidelines for drafting informed consent forms, the Office for Human Research Protections in the Department of Health and Human Services gives the following example of acceptable language: “I voluntarily and freely donate any and all blood, urine, and tissue samples to the [name of the research institution] and hereby relinquish all property rights… I may have in them.”96 Although this clause does not reference larger biomaterials like entire organs, its language makes explicit what is already implicit in the Common Rule itself—that an individual has a property right in his or her excised biomaterials. While the fate of the property right in these

94

For the purposes of this article, the distinction between rights of bodily integrity and rights to use and control the body is entirely categorical in nature – as of the present, the United States has no explicit law protecting the right of bodily integrity. See, e.g., CRIN, Bodily Integrity, https://www.crin.org/en/home/what-we-do/policy/bodily-integrity.

95 CFR Section 46, 20 (2009).

96 See OFFICE FOR HUMAN RESEARCH PROTECTIONS, GUIDANCE ON EXCULPATORY LANGUAGE IN INFORMED CONSENT, DEPT. OF HEALTH AND HUMAN SERVICES (2011) (emphasis added).

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS biomaterials may depend on the conditions laid out in a given informed consent form, the language of the Common Rule and its associated guidelines rely on the principle that an individual does possess a property right in his or her excised biomaterials.

IV. Pragmatic Considerations for Recognizing Property Rights Collectively, cases like Moore, Greenberg, and Catalona share concerns regarding the impact judicial decisions might have on the biotechnology industry. Indeed, many of the cases explicitly recognize these concerns in their commentary. Moore discusses the fear that granting a property right in such materials would de-incentivize medical research because “with every cell sample a researcher purchases a ticket in a litigation lottery.” 97 Similarly, Greenberg highlights a concern that bestowing a property right would “cripple medical research” by creating “a continuing right for donors to possess the results of any research conducted by the hospital.”98 Furthermore, Myriad cites the role that patent protection has in “creating incentives that lead to creation, invention, and discovery.”99 In his dissent in Moore, Justice Arabian aptly summarizes these concerns: The ramifications of recognizing and enforcing a property interest in body tissues are not known, but are greatly feared – the effect on human dignity of a marketplace in human body parts, the impact on research and development of competitive bidding for such materials, and the exposure of researchers to potentially limitless and uncharted tort liability.100

Therefore, an effective response to the issue of property rights in excised biomaterials must include a schema for addressing the pragmatic utility of property rights, in addition to its theoretical and legal features. The following sections will address each of these concerns in turn.

97

Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 146 (Cal. 1990).

Greenberg v. Miami Children’s Hospital, 264 F. Supp. 2d 1064 (S.D. Fla. 2003).

99 Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (June 13, 2013).

100 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 149 (Cal. 1990).

98

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UCLA UNDERGRADUATE LAW JOURNAL A. Fear of Hindering Research Perhaps the most prominent pragmatic consideration is that conferring a property right in excised biomaterials would hinder medical and scientific research. For example, Moore expresses the fear that a property right would “hinder research by restricting access to the necessary raw materials… The exchange of scientific materials, which still is relatively free and efficient, will surely be compromised if each cell sample becomes the potential subject matter of a lawsuit.”101 This worry is based on Moore’s additional concern that this property right would result in a “litigation lottery,” in which any patient could file a lawsuit against a hospital for wrongfully using his or her biomaterials.102 However, neither fear is warranted. As Justice Mosk suggests, researchers and hospitals could ensure that their tissue use adheres to patient wishes through appropriate record-keeping practices.103 In fact, many of these practices are already required by the Common Rule.104 In a more extreme case, the National Institute of Health and the Lacks family even developed the HeLa Genome Data Access Working Group,105 a group that controls access to the HeLa genome, in order to facilitate more ethically acceptable uses of the HeLa cell line. 106 Through appropriate record-keeping, hospitals and researchers can ensure that no legal obligations are broken before conducting research. Record-keeping is in no way an “undue burden” to researchers, and is already an established administrative requirement.

Alternatively, property rights can spur further medical advancements and research. For example, according to the United Network for Organ Sharing, twenty people in the United States die each day while waiting for an organ donation.107 Scientific studies have gone as far as classifying organ shortage as 101

Id. at 144.

Id. at 146.

103 Id. at 172 (Mosk, S., dissenting).

104 See CFR Section 46, at 19 (2009) (“[R]ecords relating to research that is conducted shall be retained for at least 3 years after completion of the research.”).

105 RAO, supra note 81 at 437.

106 Id. 107 NATIONAL DATA, UNITED NETWORK FOR ORGAN SHARING, https://unos.org/data/ (last visited Feb. 1, 2019).

102

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS the greatest problem for transplantation in the United States today.108 By contrast, Iran adopted a regulated program for kidney donation in 1988, offering compensation to donors.109 By 1999, Iran’s donor registry increased substantially and had no shortage, a result which continues to this day.110 As a model for the potential efficacy of a property right in excised biomaterials, Iran underscores the positive effects that a property right in excised biomaterials can have to medicine and to the public good. Importantly, this article is not condoning the sale of organs—such an argument assuredly exceeds this article’s scope. Instead, it is drawing on these empirical studies to counter claims like those made in Moore, which suggest that property and research are inherently oppositional. As Iran’s donor registry shows, attributing a property right to an organ can actually encourage organ donation and thus engender further research.

B. Insufficiency of Informed Consent Lastly, Moore claims that it need not invoke a property right in excised biomaterials, because it “is not necessary to protect patients’ rights.”111 The court held that the breach of informed consent is sufficient in protecting the plaintiff’s rights in this case. However, without a conversion right, the plaintiff is not entitled to any of the commercial profit that the researchers earned from the derived cell line. Therefore, Moore could only receive damages based on the doctor’s breach of informed consent and fiduciary duty, despite the fact that the Mo cell line, which originated from his excised biomaterials without his consent, was estimated to be worth three billion dollars.112 This “solution” presented in Moore creates a dangerous set of circumstances. For example, consider a 108

See, e.g., Arthur Matas, In Defense of a Regulated System of Compensation for Living Donation, 13 CURRENT OPINION IN ORGAN TRANSPLANTATION 379.

109 See Ahad Ghods, Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation, 1 CLINICAL JOURNAL OF THE AMERICAN SOCIETY OF NEPHROLOGY 1136.

110 Id. 111 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 143 (Cal. 1990).

112 Id. at 127.

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UCLA UNDERGRADUATE LAW JOURNAL researcher who knows that a patient’s excised tissue would be valuable but doubts that the patient would consent to the research if the patient knew of the tissue’s economic value. Assuming the market value of the cell line outweighed the financial penalties for a breach of fiduciary duty and a lack of informed consent, the researcher would be economically incentivized to lie to the patient in order to own the tissue and thereby gain a profit. Thus, the decision in Moore fails to offer sufficient protections for patient rights and may even encourage medical practitioners to perform illicit acts.

Additionally, informed consent alone is not sufficient for protecting an individual’s property rights. The Arizona Court of Appeals case Havasupai Tribe v. Arizona Board of Regents is a quintessential example of the limitations of informed consent.113 From 1990 to 1992, researchers at Arizona State University collected blood samples from more than 200 Havasupai tribe members, with the understanding that this research was focused on studying diabetes within the Tribe.114 After concluding this study, however, the researchers used the blood samples to research schizophrenia, inbreeding, and the geographical origins of the Tribe,115 even though this research goes against many of the Tribe’s cultural and religious beliefs.116 Although the researchers informed the Tribe that their blood samples would only be used for diabetes testing, the court held that the Tribe’s consent “is not made ineffective even if Defendants did make fraudulent representations to induce that consent.” According to the court, this is because the Tribe signed a blanket consent form agreeing to the research for studying “behavioral/medical disorders.”117 Havasupai takes the fear of research dishonesty to its extreme. This case holds that informed consent not only fails to grant an individual an economic right to profits, but in some cases, it also fails to protect patients against blatant 113

Havasupai Tribe v. Arizona Board of Regents, 204 P.3d 1063 (Ariz. Ct. of Appeals 2008).

Id. at 1067.

115 Id. 116 For example, the Tribe believed that its lineage originated from the Grand Canyon. For the Tribe, this belief plays a critical role in legitimizing its right to their land. However, the conducted studies indicated instead that the Tribe originated from Asia Minor, threatening the Tribe’s long-standing cultural beliefs and practices. RAO, supra note 81 at 439.

117 Id. 114

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PRESCRIPTION, PRECEDENT, AND PRAGMATICS: A THREE-FOLD ARGUMENT FOR PROPERTY RIGHTS IN EXCISED BIOMATERIALS and intentional acts of fraud. Contrary to the reasoning in decisions like Moore, cases like Havasupai show that a system of informed consent cannot be sufficient for protecting patient rights. A property right would offer increased protection to individuals like the Havasupai by ensuring a continued set of rights in excised biomaterials that go beyond mere blanket consent.118 Conclusion Today, the debate surrounding a property right in excised biomaterials remains unsettled. As scientific and medical technology improves, this issue will continue to be significant. Upon an analysis of property theory, legal and regulatory precedent, and pragmatic considerations, this article concludes that individuals possess a legitimate property right in their excised biomaterials.

However, the influence of this conclusion cannot halt at the state court level. As previous cases have shown, state and appellate courts often take up positions that contradict one another.119 While there have been numerous cases on the issue at the lower levels of the judicial system, the Supreme Court has yet to rule definitively on the issue, even denying to review state decisions.120 Without a conclusive Supreme Court ruling, this matter turns to the legislature. And, as this article asserts, the legislature must rightly conclude that we do have a property right in our excised biomaterials.

118

See supra Part III., Section C., Subsection 2 for a description of these rights.

See supra Part IV., Section A. 120 See, e.g., Catalona v. Washington University, 128 S. Ct. 1122 (2008).

119

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UCLA UNDERGRADUATE LAW JOURNAL Avery Horne*

The Unconstitutionality of Facial Recognition Software in Schools ABSTRACT. Presently, law enforcement in the United States has begun using facial surveillance software to identify and track citizens by biometrically mapping their faces. This highly invasive software has recently been proposed to protect students from school shootings by identifying students seen as threats and preventing them from acting. However, the software would in actuality be employed to monitor and surveil students, and act as an interface to state and federal crime databases. In light of threatening electronic surveillance, there must be a discussion of minors’ rights to informational privacy. In this article, I argue against the use of facial surveillance software by police and administrators in schools. The warrantless electronic search of students violates the Fourth Amendment’s protection against an unreasonable search and cannot be justified under the reasonable suspicion standard, the reasonable expectation of privacy test, or the third-party doctrine, rendering the use of such software in schools unconstitutional. A warrant would not eliminate the constitutional problems posed by facial recognition software, as the mere presence of the software in schools conflicts with the foundational intent of the Fourth Amendment. The software is inherently ineffective and an ultimately threatening measure that cannot protect students and is consequently unreasonable. If such surveillance is permitted, the implications will be disastrous, as this invasive surveillance would disproportionately affect students with disabilities and students of color. Ultimately, the Supreme Court must condemn the use of this software in schools and require federal regulation of this software. *Avery is a graduating senior at UCLA, who will receive a degree in psychology, english, and disability studies in the Spring of 2019. In the future, Avery is looking forward to continuing her legal research as a law student, a professional, and as a citizen who is committed to advocating for equity for those who have been systemically oppressed in our nation. She thanks the Education Equity department at ACLU SoCal for the exposure to the issue of facial recognition software in schools and for the ongoing support and mentorship.

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS Introduction The history of facial recognition technology is rooted in one of the most turbulent times for privacy in American history. After the September 11th terrorist attacks, politicians were left wondering how such devastating plans could have gone undetected. As they explored what preventative measures they could take in the future, many pointed to a technology they believed would identify the faces of suspects and match them alongside a national database of known terrorists, in effect, preventing future attacks.1 Now, the software is a secretly stable part of policing in America. While many government officials see the practicality of using such technology to protect the public, the rapid progression of surveillance technology has created a major threat to our core constitutional rights and values, including privacy and anonymity, free speech and association, government accountability, and equal protection. 2 Privacy scholars Woodrow Hartzog and Evan Selinger argue that facial recognition technology is the “perfect tool for oppression” and believe it “is the most uniquely dangerous surveillance mechanism ever invented,” because “it is perfectly suited for governments to display unprecedented authoritarian control.”3 There is no question that there must be regulation of this imperfect technology that has been known to misidentify faces.4 Despite its popular use and imperfect methods, the Supreme Court has yet to formally address the use 1

Kelly Gates, Identifying the 9/11 ‘Faces of Terror’: The Promise and Problem of Facial Recognition Technology 20 Cultural Studies 417, 417 (2006), https://www.tandfonline.com/doi/pdf/10.1080/09502380600708820?needAccess=true.

2 THE CONSTITUTION PROJECT, GUIDELINES FOR PUBLIC VIDEO SURVEILLANCE: A GUIDE TO PROTECTING COMMUNITIES AND PRESERVING CIVIL LIBERTIES xi (2007), https://constitutionproject.org/wp-content/uploads/2012/09/54.pdf.

3 Woodrow Hartzog & Evan Selinger, Facial Recognition is the Perfect Tool for Oppression, MEDIUM (Aug. 2, 2018), https://medium.com/s/story/facial-recognition-is-the-perfect-toolfor-oppression-bc2a08f0fe66.

4 Id.; see also Jacob Snow, Amazon’s Face Recognition Falsely Match 28 Members of Congress With Mugshots, ACLU: FREE FUTURE (July 26, 2018), https://www.aclu.org/blog/privacytechnology/surveillance-technologies/amazons-face-recognition-falsely-matched-28 (This article discusses an ACLU study that used members of Congress to test Amazon’s facial recognition system and found that, when checked against the mugshot database, 28 members of Congress were misidentified).

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UCLA UNDERGRADUATE LAW JOURNAL of facial recognition technology by the police in public spheres, and federal law has yet to impose any explicit regulation of the technology.5 Additionally, in the midst of the recently renewed fear of school shootings, schools are beginning to propose facial recognition software in schools as a way to surveil students, promoting the software under the guise of preventing violent behavior.

In 2018, multiple schools proposed, and in some cases implemented, facial recognition software.6 The way the software may be utilized is variable; in some cases, its purported purpose is to prevent intruders. In other cases, the circumstances are much more chilling. In New York, the Lockport City School District’s proposal indicates that the purpose of the facial recognition software is to track students “that are seen as threats” and to upload that information into a district database.7 This will then be “[interfaced with] local and federal crime databases,”8 potentially without students’ consent. This intense surveillance of students comes in response to fears about school shootings.9 Lockport administrators claimed they believed facial surveillance could thwart shootings perpetrated by expelled students.10 While this software alleges to be highly accurate,11 it has been reported to make “significantly higher [errors] and misidentification rates when used on dark-skinned and female faces.”12 The

5

Kade Crockford & Emiliano Falcon, Americans Overwhelmingly Want Face Surveillance Regulation, But Government and Big Tech Aren’t Waiting For It, PRIVACYSOS.ORG: PRIVACY MATTERS (Oct. 10, 2018), https://privacysos.org/blog/americans-overwhelmingly-want-facesurveillance-regulation-government-big-tech-arent-waiting/.

6 Facial Recognition Tech at Schools Fuels Privacy Debate, AP NEWS (Sept. 30, 2018), https://apnews.com/6ae59b16c2d6423a9548b48bfda67136; Associated Press, Schools Using Facial Recognition Tech to Boost Safety, NEW YORK POST (July 23, 2018), https://nypost.com/2018/07/23/schools-using-facial-recognition-tech-to-boost-safety/.

7 Associated Press, Schools Using Facial Recognition Tech to Boost Safety, NEW YORK POST (July 23, 2018), https://nypost.com/2018/07/23/schools-using-facial-recognition-tech-to-boostsafety/.

8 Stefanie Coyle & John Curr III, New York School District Seeks Facial Recognition Cameras for Public Schools, ACLU: FREE FUTURE (June 20, 2018), https://www.aclu.org/blog/privacytechnology/surveillance-technologies/new-york-school-district-seeks-facial-recognition.

9 Associated Press, supra note 7.

10 Id. 11 Sidney Fussell, Schools Are Spending Millions on High-Tech Surveillance of Kids, GIZMODO (Mar. 16, 2018), https://gizmodo.com/schools-are-spending-millions-on-high-techsurveillance-1823811050.

12 Sidney Fussell, Even When Spotting Gender, Current Face Recognition Tech Works Better for White Dudes, GIZMODO (Feb. 12, 2018), https://gizmodo.com/even-when-spotting-gendercurrent-face-recognition-tec-1822929750.

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS footage, perhaps with identification errors, could later be used as evidence in court to convict students of crimes. The use of facial software as surveillance in schools is an unconstitutional breach of students’ Fourth Amendment right to be protected from unreasonable searches. Yet, there are no federal laws restricting this type of invasive surveillance, leaving the system in Lockport, and others like it, completely unregulated.

This unregulated system masquerades as protection for students, yet it does not and cannot address the vast majority of shooting threats that have been perpetrated by students who were not previously violent. Regardless of whether the system is utilized to protect students from intruding gunmen, systems like these risk abuse and the criminalization of students by storing their personal information for future, potentially warrantless, review. Systems that selectively load students “seen as threats” into the system also present problems of inequitable treatment; who determines which students are “seen as threats,” and who is allowed to make that determination? With or without a warrant, the implementation of facial recognition software poses an unprecedented threat to students’ privacy, as its legality is dubious and its potential for exploitation is undeniable.

In this article, I argue that the use of facial recognition software in schools is an unconstitutional breach of informational privacy that threatens minors.

Facial recognition software can be used in two ways: as live footage that identifies students and alerts administrators to their presence and as a stored database of amassed, identifiable footage of students. Both of these uses of facial surveillance represent flagrant violations of constitutional protections against unreasonable search and seizure as outlined in the Fourth Amendment. In Part I, I review the jurisprudence of the Fourth Amendment and relevant legal concepts as they apply to technology, information privacy, and specifically to minors. In Part II, I examine how student facial surveillance data can be illegally accessed by the police without a warrant using the standard of reasonable suspicion in schools. Specifically, I argue that the two prongs of this standard, which must be met to permit the search and seizure of students in schools, cannot be used to justify the implementation of facial surveillance, in part,

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UCLA UNDERGRADUATE LAW JOURNAL because the software is excessively intrusive. Given that reasonable suspicion cannot justify warrantless access to facial surveillance data, in Part III, I demonstrate that the warrantless access of a student’s information cannot be justified through other legal privacy concepts. Specifically, I assess the reasonable expectation of privacy and the third-party doctrine and conclude that both concepts fail to apply to students. In Part IV, I argue that the use of facial recognition software in schools, even with a warrant, is still unconstitutional.

Such software constitutes an unreasonable electronic search and thus conflicts with the intent of the Fourth Amendment. Additionally, I argue that the software will be inherently ineffective and will actively threaten students’ privacy, making it unreasonable and therefore unconstitutional. Part V explores secondary arguments against the use of facial recognition software, demonstrating that such software will disproportionately criminalize certain students. Lastly, Part VI discusses recommendations for the Court and Congress when dealing with facial surveillance.

I. The Evolution of Fourth Amendment Protections A. A Brief History of Fourth Amendment Protections In this section, I discuss the history behind the Fourth Amendment and the test currently used to determine its protections, the application of these protections in the context of new technology, and the formation of informational privacy and its application to minors.

Despite the limitations that have been placed on the application of the Fourth Amendment, the Framers of the U.S. Constitution intended the Fourth Amendment to be a broad protection against government invasion of an individual’s right to privacy. Specifically, they were wary of the possibility that the English government could view their personal papers and wanted to protect themselves from the general warrant.13 This amendment has served as the

13

Solove, Nothing to Hide 38 (2011).

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS cornerstone of many cases brought before the Supreme Court about individuals’ right to privacy.

The reasonable expectation of privacy test, which was first outlined in 1967 in Katz v. United States, is the current method used to determine whether a Fourth Amendment protection exists.14 In Katz, the Court ruled that the Amendment protects any place where an individual has a reasonable expectation of privacy. In the majority opinion, Justice Stewart wrote, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 15 This test helped formulate which areas of privacy individuals are afforded and still guides our interpretation of Fourth Amendment protections over technological invasions of privacy.

B. The Shift in Fourth Amendment Protections in The Digital Age Recent Supreme Court cases like United States v. Jones and Carpenter v.

United States have questioned the use of electronic surveillance in light of the excessive intrusion made possible by technological advances. In 2012, the Court ruled on a case brought by Antoine Jones, after evidence from a tracker that police warrantlessly attached to his car led to his conviction. A unanimous decision by the Supreme Court concluded that the use of this device to monitor Jones’ movements violated his Fourth Amendment rights.16 There was a clear consensus of the Court that the collection of such intrusive information violated Jones’ right to be protected from unreasonable searches. In her concurring opinion in United States v. Jones, Justice Sotomayor wrote, “a Fourth Amendment search occurs when the government violates a subjective

14

Peter Winn, Katz and the Origins of the ‘Reasonable Expectation of Privacy’ Test, 40 MCGEORGE L. REV. 2008, 1 https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?article=1204&context=mlr.

15 Id. at 5.

16 United States v. Jones, 565 U.S. 400 (2012).

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UCLA UNDERGRADUATE LAW JOURNAL expectation of privacy that society recognizes as reasonable.”17 She indirectly calls for a reassessment of the reasonable expectation of privacy test by referencing society’s expectations, which are bound to have changed with the advent of new technology.

Sotomayor’s call to emphasize reasonable privacy expectations in the face of new technology is also reflected in Carpenter v. United States. This case raised the question of whether the warrantless search and seizure of cell phone records, which includes the locations and movements of cell phone users, violates the Fourth Amendment.18 The Court held that the warrantless acquisition of cell site records violated the right of the defendant to be free of unreasonable search and seizures. The holding ultimately concluded that previous precedents on privacy may not “fit neatly” to cases that deal with new technologies that pose risks that were previously unanticipated.19 As facial surveillance is a new technology, it is clear that previous precedents concerning privacy may not be adequate in addressing the issues of privacy this software poses. Part II of this article will discuss previous precedents and evaluate how they apply to the use of facial recognition software in schools.

With its rulings in United States v. Jones and Carpenter v. United States, the Supreme Court has signaled that more protections for citizens’ informational privacy are necessary given the access to our private information that current technology affords. These major cases help inform the discussion of facial recognition technology particularly given the lack of commentary by the Supreme Court on this specific technology.

C. Informational Privacy under the Fourth Amendment and its Application to Minors Prior to examining the application of Fourth Amendment protections to facial recognition surveillance, it is necessary to first examine the right to informational privacy recognized as a part of the right to privacy and how this

17

Id. at 1.

Carpenter v. United States, 585 U.S. (2018).

19 Id. at 7.

18

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS right applies to minors. In Whalen v. Roe, the Supreme Court formulated two distinct interests protected by the right to privacy: informational privacy and decisional privacy.20 For the purposes of this paper, I will exclusively focus on informational privacy. Informational privacy has been defined as the right to control the collection, use, and disclosure of one’s personal information.21 Two additional cases have addressed the right to informational privacy for adults, 22 yet neither case clarifies much about these rights for adults. In NASA v. Nelson, the Court held that in light of the government’s interest as an employer, it could ask reasonable questions about employees’ information as long as there are meaningful regulations on such questions. This holding was narrow even in its application to adults.23 In the case of school surveillance breaching informational privacy, the government is neither acting as an employer with a legitimate reason to obtain identifying or personal information, nor are there any current regulations, as the Court demanded in NASA. While this provides a good basis for informational protections for minors, this case has yet to be applied as a precedent for minors’ informational privacy rights, as the Supreme Court has yet to explicitly weigh in the issue.

However, claims brought by minors about informational privacy have been addressed by district courts, which have either applied the same framework to minors that was created for adults in Whalen v. Roe or have limited minor’s informational privacy claims.24 Both of these approaches to the privacy rights of minors are insufficient, because neither recognize the “particular vulnerabilities” of

20

Whalen v. Roe, 429 U.S. 589 (1977).

William Arms et al., Legal Information Institute, Privacy after Roe: Informational Privacy, Privacy of the Home or Personal Autonomy?, (2018), https://www.law.cornell.edu/constitutionconan/amendment-14/section-1/privacy-after-roe-informational-privacy-privacy-of-the-homeor-personal-autonomy.

22 See NASA v. Nelson, 562 U.S. 134 (2011); Whalen v. Roe, 429 U.S. 589 (1977); Nixon v.

Administrator of General Services, 433 U.S. 425 (1977).

23 NASA v. Nelson, 562 U.S. 134 (2011).

24 Zoey Mayhew, Informational Privacy in the Modern Era: Expanding Constitutional Protections to the Mental Health Care of Minors, 3, https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1273&context=king (last visited Feb. 28, 2019).

21

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UCLA UNDERGRADUATE LAW JOURNAL minors.25 Because minors lack the foresight to anticipate misuses of their information, the agency to advocate for their rights, and the cognitive capacity to make judgement calls like adults, there must be increased protection of their information. Minors’ limited abilities to make mature judgements provide a strong basis for restricting the storage of information that tracks their mistakes by way of identifiable surveillance footage—they are merely children failing and learning in the process. Additionally, minors are more vulnerable to a potential prosecution using their stored information as evidence, especially when this information is amassed over years of schooling.

The fact that little has been discussed about the implications of a right to informational privacy, especially as it pertains to minors, points to the critical need for the Supreme Court to weigh in on this issue. The major ambiguity of minors’ informational privacy rights and the Court’s call for more discussion on the potentially harmful effects of technology on privacy, highlights the urgent need to consider the repercussions of facial recognition surveillance of students.

D. Electronic Surveillance Constitutes a Search and Falls Under Fourth Amendment Protections As technology progressed, new precedents were set to determine what constitutes a search under the Fourth Amendment. In Kyllo v. United States, the Court held that other methods beyond physical intrusion, such as surveillance, constitute a search.26 In 2018, the Supreme Court case Carpenter v. United States, concluded that cell phone location information is protected by the Fourth Amendment due to the “detailed [information that it] chronicle[s] of a person’s physical presence compiled every day, every moment over years.”27 Because this information created a form of “near perfect surveillance,”28 it, and other forms of electronic surveillance, must fall under Fourth Amendment protections.

25

Helen L. Gilbert, Minor’s Constitutional Rights to Informational Privacy, 74 U. CHI. L. REV. 1375, 1376 (2007).

26 Kyllo v. United States, 533 U.S. 27 (2001).

27 Carpenter v. United States, 585 U.S., 16 (2018).

28 Id. at 13.

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS According to the Foreign Intelligence Surveillance Act of 1978, an electronic surveillance is defined in federal law as “the nonconsensual acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or electronic communication, under circumstances in which a party to the communication has a reasonable expectation of privacy”; communication in this definition includes “any information concerning the identity of the parties.”29 As facial recognition software communicates identifiable information, it constitutes a form of electronic surveillance.

Additionally, facial surveillance functions in nearly the same way as cell site location data, as it too communicates detailed information “compiled every day, every moment over years.”30 As such, facial surveillance is a form of electronic surveillance that, given the logic in Carpenter v. United States, should qualify as a search and therefore be protected by the Fourth Amendment.

Because facial surveillance software would qualify as a search under the Fourth Amendment, the question then becomes: is the search unreasonable?

This article will demonstrate that such a search is not reasonable.

Now that we have reviewed the limited precedent for Fourth Amendment applications to electronic surveillance and minors, we can examine the application of the standard that searches in schools must meet in order to comply with the Fourth Amendment: reasonable suspicion. Additionally, I will then examine previous doctrines that have permitted warrantless searches: the reasonable expectation of privacy test and the third-party doctrine. Applying these three tests to facial surveillance, I demonstrate that they cannot be used to justify the police’s warrantless access to facial recognition software in schools.

It is important to note here that much of the grounds for the argument against facial recognition technology in schools is based on the fact that such information will likely land in the hands of the police to criminalize and prosecute students. In the following sections, I will discuss how it is likely that students’ facial information will be accessed without a warrant given the current

29 30

50 U.S.C. §1801 (2018).

Carpenter v. United States, 585 U.S., 16-17 (2018).

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UCLA UNDERGRADUATE LAW JOURNAL standard in schools and I will then explain why a warrantless tap of this information cannot be justified through current legal concepts in privacy that may seem to dictate otherwise.

II. Reasonable Suspicion May Allow for Warrantless Review, but is Inapplicable In the United States, citizens have the right to be free of unreasonable searches under the Fourth Amendment. However, in order to maintain a safe environment, that right is diminished on school grounds, subject to certain conditions. In 1985, the Supreme Court case New Jersey v. T.L.O. formulated a new standard for the search of students on campus: reasonable suspicion.31 Reasonable suspicion can be applied when two conditions are satisfied: (1) the search is justified at its inception, meaning that there are reasonable grounds for suspecting that the search will reveal evidence that the student has violated or is violating the law or school rules, and (2) the search is reasonably related in scope to the circumstances that justified the search, meaning that the measures used to conduct the search are reasonably related to the objectives of the search and that the search is not excessively intrusive in light of the student's age and sex and the nature of the offense.32

Despite the laws in place which require the police to obtain a warrant on the basis of probable cause, school police may seek to justify their access to data from facial recognition software using the reasonable suspicion standard. On the basis of the conditions outlined in the New Jersey v. T.L.O. holding, reasonable suspicion could not justify the warrantless access of facial surveillance footage even by school officials, much less by police. Facial recognition surveillance fails to meet the second prong outlined in New Jersey, because it is excessively intrusive.33 Detailed, identifiable facial surveillance information that is collected and stored about students prior to any wrongful act is inherently intrusive to students and is excessively so because it lacks any objective beyond preventive measures. The Court itself observed a potential for the misuse of this standard in Safford Unified School District v. Redding. In this case, the Court found that a 31

Kate R. Ehlenberger The Right to Search Students, 59 EDUCATIONAL LEADERSHIP 31, 31-35 (2002).

32 Id. 33 New Jersey v. T.L.O., 469 U.S. 325 (1985).

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS strip search of a student suspected of drug possession was not “reasonably related to the objectives of the search and [was] excessively intrusive in light of the age and sex of the student and the nature of the infraction.”34 The Court ruled that there was not sufficient suspicion to allow school officials to search the student's underwear.35 This case demonstrates the extent to which school officials can abuse the reasonable suspicion standard and violate the privacy of students. Much like a strip search, a detailed log of facial surveillance information that is stored and accessed without a warrant is excessively intrusive.

The Court’s ruling in Carpenter v. United States supports this assessment of facial surveillance as excessively intrusive. In the case, stored cell tower data was used to track the defendant’s exact location, link him to a crime, and ultimately implicate him in robberies as a result.36 However, the Court held that the warrantless tapping of information could not be upheld as lawful, given the intrusive nature of cell phone data and the defendant’s reasonable expectation of privacy.37 The level of intrusiveness of facial surveillance data is similar to that of the Carpenter case, as facial surveillance technology can track a student’s exact location without that student’s consent. This precedent provides clear evidence that facial surveillance fails to meet the reasonable suspicion standard and exceeds the level of intrusiveness allowed by law.

Ultimately, warrantless access to minors’ facial recognition information is excessively intrusive, fails to meet the criteria for reasonable suspicion standard, and, therefore, cannot legally be allowed to occur under the guise of an administrative search. It would be unconstitutional for schools to selectively load “suspicious” students into the system and police should not have access to this information without a warrant.38 It is also important to consider whether children could reasonably assess the tradeoffs between the invasion of their

34

Safford Unified School Dist. #1 v. Redding, 557 U.S. 364, 2 (2009).

Id. at 3.

36 Carpenter v. United States, 585 U.S. (2018).

37 Id. 38 Ehlenberger, supra note 31.

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UCLA UNDERGRADUATE LAW JOURNAL privacy and their security. Common sense would point to the idea that students could not reasonably assess this tradeoff due to their minor status. Such is the issue with the application of the legal concept of reasonable expectation of privacy to minors. Given that I have demonstrated that facial surveillance fails to pass the test of reasonable suspicion, I will now apply the two remaining tests that could reasonably be applied to assess whether students retain protections against facial recognition software under the Fourth Amendment.

III. The Reasonable Expectation Test and Third-Party Doctrine Fail to Justify Warrantless Review A. Reasonable Expectation of Privacy The argument may be made that since schools are public places, established and regulated by the state, there is no reasonable expectation of privacy in these spaces. In Katz v. United States, the Court held that the Fourth Amendment protects any place where an individual has a reasonable expectation of privacy.39 However, it is worth questioning if the reasonable expectation of privacy can even apply to minors. The use of the phrase “knowingly exposes” in the majority opinion in Katz v. United States suggests that individuals are able to assess what they are revealing in light of their environment. In applying the concept of a reasonable expectation of privacy to schools, we must consider whether minors “knowingly expose” information about themselves at school and are therefore not protected by the Fourth Amendment. Such a reading of the case would imply that minors are capable of both understanding the risk of exposure, assessing that risk, and making an informed decision to protect or expose themselves to scrutiny. This expectation of knowledge about the level of exposure is obviously unreasonable given minors’ limited levels of maturity, awareness, and capacity for judgement. Therefore, holding them to a standard where they are assumed to have an adult understanding of Fourth Amendment protections is not reasonable. This is particularly true for students with cognitive disabilities who would be subject to facial recognition surveillance. In 39

Katz v. United States, 389 U.S. 347 (1967).

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS his concurring opinion, Justice Harlan formulates criteria for meeting the reasonable expectation of privacy test: My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.40

To address Justice Harlan’s second requirement of reasonable expectation of privacy—that society recognizes the person’s expectation as reasonable—it is necessary to examine the public’s reaction to facial surveillance in schools. The protection from excessively invasive surveillance of students while on school grounds is a reasonable expectation of the public at large.41 Given the vulnerability of minors, their immaturity, and the errors students are expected to make in a learning environment, it is reasonable for the public to expect a heightened level of protection and privacy on school grounds. Both the increase in the criminalization of students and the installation of facial surveillance in schools have caused uproar from the public and civil rights groups such as the ACLU.42 Clearly, then, since a major subset of the population of adults have objections to this use of technology in schools, they have a reasonable 40

Winn, supra note 14, at 6-7.

Hartzog & Selinger, supra note 3.

42 See Zak Doffman, Why Facial Recognition in Schools Seems to Be an Aimless Recipe for Disaster, FORBES (Nov. 7, 2018), https://www.forbes.com/sites/zakdoffman/2018/11/07/why-facialrecognition-in-schools-seems-to-be-an-aimless-recipe-for-disaster/#5ae529581a83 (speaks out against the use of facial recognition software and discusses how fear and misperception are motivating the misapplication of facial surveillance in schools); Chad Marlow, Student Surveillance Versus Gun Control: The School Safety Discussion We Aren’t Having, ACLU: SPEAK FREELY (Mar. 4, 2019), https://www.aclu.org/blog/privacy-technology/surveillancetechnologies/student-surveillance-versus-gun-control-school (advocates for research into the effects of surveillance while chronicling the dangers that facial surveillance software could pose); Tony Smith-Thompson, Here’s What Happens When We Allow Facial Recognition Technology in Our Schools, ACLU: SPEAK FREELY (Aug. 15, 2018), https://www.aclu.org/blog/privacytechnology/surveillance-technologies/heres-what-happens-when-we-allow-facial. (specifically rebuts the use of facial surveillance in schools).

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UCLA UNDERGRADUATE LAW JOURNAL expectation of their children’s privacy. Given a minor’s lack of understanding of the reasonable expectations of privacy, they should be afforded more protections—students do not have the capability of understanding what expectations of privacy are reasonable for them to have on school grounds.

Therefore, the standard reasonable expectation of privacy should not be used with regards to students.

B. The Third-Party Doctrine In the 1970s, the Supreme Court expanded upon the reasonable expectation of privacy test, developing what is now known as the third-party doctrine.43 This doctrine states that if one’s information is released to a third party, such as cell phone company, there is no reasonable expectation of privacy over that information, and the Fourth Amendment does not apply. In the case of facial surveillance technology in schools, the third-party doctrine cannot be used to justify a breach in minors’ information privacy. The inability of students to consent to the technology renders the third party inapplicable, in light of the holding in Carpenter v. United States, which contains the third-party doctrine to voluntary exposure. State compulsory school attendance laws mandate that students attend from ages six to eighteen, with some variation between states.44 Therefore, there is no opportunity for students to opt out of their schooling and avoid facial surveillance technology that could pose a serious threat to their right to privacy. This inability to consent exposes them to insidious criminalization and makes already vulnerable children more so. However, it also expels any grounds for the application of the third-party doctrine.

If a minor cannot consent to the surveillance in the first place, they do not consent to the storage of their information by a third party. In the case of Carpenter v. U.S., an affirmative act was necessary to enable the collection of a cell phone user’s location data via a third-party cell tower on behalf of the cell 43

Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 425 U.S. 435 (1976).

U.S. Department of Education, Institute of Education Sciences, National Center for Education Statistics, Compulsory School Attendance Laws, Minimum and Maximum Age Limits for Required Free Education, By State: 2017 (2017), https://nces.ed.gov/programs/statereform/tab51.asp.

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS phone user. The Court ruled that the actions of the government to access location data without the use of a warrant through a third party whom the user could perhaps abstractly have knowledge of, did not entitle the government to the information. Carpenter v. U.S. tells us that the third-party doctrine applies to voluntary exposure, and abstract knowledge of the stored information is not sufficient. The warrantless use of the cell site information is unconstitutional, because there was never an affirmative act of consent from the user.45 This logic could easily be expanded in regards to surveillance: first, students would not be consenting to facial surveillance in the same way that cell phone users consent to data collection, and, secondly, even if they were aware of this collection, the information could not be passed on to the police without a warrant.

The third-party doctrine holds that if one voluntarily provides information to a third party, the government can access that information without breaching the Fourth Amendment.46 The Court emphasized the “voluntary” nature of the disclosure that is necessary for the application of the third-party doctrine and rendered it inapplicable to cases where no affirmative act of consent of the individual’s information was given. Therefore, the third-party doctrine was not applicable in Carpenter and it similarly cannot justify the use of facial surveillance on minors without a warrant. There must be a warrant requested, probable cause established, and a warrant issued to allow for such a breach in privacy. Without such a warrant, the search and seizure of the user’s information is unreasonable and prohibited by the Fourth Amendment.

C. Facial Surveillance is a Dragnet Search Finally, installing facial surveillance in schools implies that every student is being monitored. This use of the surveillance is, in effect, a dragnet search. A dragnet search is defined as the following:

45

Carpenter v. United States, 585 U.S., 17 (2018).

John Villasenor, What You Need to Know About the Third Party Doctrine, THE ATLANTIC, (Dec. 23, 2013), https://www.theatlantic.com/technology/archive/2013/12/what-you-need-to-knowabout-the-third-party-doctrine/282721/.

46

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UCLA UNDERGRADUATE LAW JOURNAL programmatic government efforts to investigate, detect, deter, or prevent crime or other significant harm by subjecting a group of people, most of whom are concededly innocent of wrongdoing or of plans to engage in it, to a deprivation of liberty or other significant intrusion.47

In the past, the courts have ruled that dragnet searches in schools constitute unreasonable searches. In Odenheim v. Carlstadt-East Rutherford Regional School District, a New Jersey Court struck down a program that required every student to be drug tested.48 The court ruled that administrators could not conduct the blanket search of students through urine tests, because it would violate the Fourth Amendment’s protection against unreasonable searches. The logic the court used to strike down the search rested partially on the case Terry v. Ohio, where a test was developed to weigh the reasonableness of a search that did not require a warrant. Terry v. Ohio is applicable because administrative searches fall in the category of student searches that can be conducted without a warrant on the basis of reasonable suspicion.

Under this test, blanket, dragnet searches are not justified, because they do not meet the requirement of the first prong of the test, which explicates that the search must be “justified at its inception.”49 In New Jersey v. T.L.O., the Court determined that on campuses, “justified at its inception” is defined as having “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” 50 However, facial recognition surveillance would be utilized without regard to a student’s behavior. Therefore, the reasonable suspicion standard of administrative searches could not justify this dragnet search of students.51 Additionally, Terry v. Ohio calls for “the reasonableness of any particular search... [to be] assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that

47

Christopher Slobogin, Government Dragnets, 73 L. AND CONTEMPORARY PROBLEMS 107, 110 (2010) https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1578&context=lcp.

48 Ellen M. Alderman, Dragnet Drug Testing in Public Schools and the Fourth Amendment, 86 COLUM. L. REV. 852, 852 (1986).

49 New Jersey v. T.L.O., 469 U.S. 325, 469 (1985) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).

50 Id. 51 Alderman, supra note 48.

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS the action taken was appropriate.”52 In a dragnet search, the action taken is in light of a general fear, not a particular circumstance, and, therefore, it cannot be conducted on the grounds of reasonable suspicion. This application of the Terry test in the New Jersey Court supports the argument that facial surveillance could not be installed in schools, because it too would function as a dragnet search. The police cannot conduct such a search without breaching students’ Fourth Amendment right to be free of unreasonable search and seizure.

Surveilling all students, performing a constant electronic search of their person, cannot be justified.

IV. Additional Constitutional Issues with Facial Surveillance in Schools A. Even with a Warrant, Facial Surveillance Cannot be Justified Without a warrant, the storage of and unfettered access to surveillance footage that identifies and tracks students cannot be justified by the reasonable suspicion standard, the third-party doctrine, or the reasonable expectation of privacy test. However, this does not mean that even with a warrant, this information could be justifiably stored and accessed. Even if facial surveillance is used to selectively load students into the system, a warrant cannot justify administrators’ access to this information. This is partly because their ability to request the information presumes the facial surveillance information is being collected. This information cannot be collected as a dragnet search, for reasons explained in the previous section. There is no way for the police to individually surveil one student at a school using facial recognition technology without subjecting other students walking the halls to the same intrusive surveillance.

Moreover, the mere presence of the surveillance itself, with or without a warrant cannot be collected because it fundamentally threatens the right innate

52

Terry v. Ohio, 392 U.S. 1, 21-22 (1968).

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UCLA UNDERGRADUATE LAW JOURNAL in the Fourth Amendment for the people to be “secure in their persons.”53 Such software also conflicts with students’ core constitutional rights to free speech and association as well as to equal protection. As previously mentioned, the Framers intended the Fourth Amendment be a protection against government invasion.54 The implementation of facial recognition software would clearly run contrary to this intent. Intensely surveilling children by biometrically mapping their face so that their every move and mistake can be identified certainly conflicts with “the right of the people to be secure in their persons.”55 If facial surveillance is implemented in schools, children will never be secure in their persons; a constant electronic search would occur as they walk every hall, and anonymity would be completely lost. Students could never be without identification, and any mistake they made would be permanently tied to their identity. Student mistakes and failures documented by security cameras in schools would take on a new level of precision, such that a record of every unsavory action taken by them could be conjured through a quick search in the database.

B. What is Inherently Ineffective Also Constitutes Unreasonableness If there cannot be agreement that this surveillance system is more detrimental than beneficial to students, there should at least be acknowledgement that this system is not the most effective way to keep children safe from school shootings. In fact, such surveillance will be ineffective in protecting students as it will actively threaten their privacy, rendering the electronic search an unreasonable search under the Fourth Amendment. Instead of implementing facial surveillance, funding mental health professionals would be more effective in minimizing the threat to students without simultaneously threatening their privacy.56 If the technology is intended to identify intruders 53

U.S. CONST. amend. IV. Solove, supra note 13.

55 U.S. CONST. amend. IV. 56 See Bryce Fricklas, Stopping School Shootings Before They Start: Mental Health Experts Push for Preventive Measures, THE BERKSHIRE EAGLE (Mar. 26, 2018), https://www.berkshireeagle.com/stories/stopping-school-shootings-before-they-start-mental54

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS and alert the authorities, preventive security measures that would prevent access to the school in the first place, without amassing any student information, would undoubtedly be more effective. Neither of these measures would come at a cost to privacy or security for students. The Fourth Amendment’s language dictates that the search and seizure of any person must be reasonable, “a quality that is determined by balancing the government interest in security against people’s interest in privacy… the critical issue is whether the search program effectively improves [school] safety.”57 Thus, an ineffective measure that threatens minors’ privacy is not reasonable.

The importance of minimizing the threat that electronic surveillance can pose to the innocent is communicated in the Electronic Communications Privacy Act (ECPA). The ECPA is a federal act that regulates electronic surveillance use in criminal investigations. The ECPA “requires government officials to explain to the court why alternative investigative methods won’t be effective,” and guides future cases to “mandate that law enforcement officials minimize listening in when innocent people are involved.”58 Though this is a standard for criminal proceedings, it should also be implemented when applied to surveillance in schools. Since the purported purpose of facial surveillance technology is to ensure safety and document violent or criminal behavior, it seems that schools should have to justify why facial surveillance should be implemented. Even if such an unlikely case were made, schools would still be required to minimize the threat to innocent individuals, which would likely be the majority of students. Certainly, students should not be viewed as criminals health-experts-push-for-preventive-measures,535451 (mental health providers discuss measures they are taking to address school violence); Chad Marlow, Student Surveillance Versus Gun Control: The School Safety Discussion We Aren’t Having, ACLU: SPEAK FREELY (Mar. 4, 2019), https://www.aclu.org/blog/privacy-technology/surveillance-technologies/student-surveillanceversus-gun-control-school (points the problems with implementing surveillance in schools as a way to avoid addressing gun control measures and discusses the practicality of increasing mental health providers in schools, which has no negative consequences for students); Carolyn Reinach Wolf, Preventing School Shootings Requires Additional Measures, PSYCHOLOGY TODAY (June 12, 2018), https://www.psychologytoday.com/us/blog/the-desk-the-mental-healthlawyer/201806/preventing-school-shootings-requires-additional (discusses the need for psychological interventions as preventative measures for students).

57 Solove, supra note 13, at 73.

58 Id.

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UCLA UNDERGRADUATE LAW JOURNAL and should be afforded, at the very least, the same protections conferred to criminals, if not more. Facial surveillance technology certainly does not meet this related standard outlined in federal law.

Ultimately, facial surveillance technology would be ineffective in preventing school shootings. The main argument schools put forth in favor of implementing this software is that restricting privacy is necessary given the severity of gun violence. However, this argument is not well founded,59 fails to consider other more effective approaches, and cannot take precedent over constitutional violations.

V. Implications of Facial Surveillance Software in Schools Finally, the use of facial recognition software in schools is problematic in that it exposes some of the most vulnerable members of our population— children—to invasive measures outside of their consent. It cannot be overstated that minors cannot protect their rights against such software; they cannot consent to its use and it is therefore imperative that the Court act to protect minors against such invasions of privacy. Beyond legal considerations, there is additional significance and urgency in protecting a child’s right to privacy in education; namely, in many ways, education holds the promise of equal opportunity. There will be no such equal opportunity for students if they are criminalized in their infancy and childhood. This issue thus extends beyond students’ desire and right to have privacy.

The extent of surveillance conducted by facial recognition software could threaten students’ futures in an indefinite number of ways. Under a system of detailed, intrusive surveillance, students’ previous failures and mistakes could be unjustly used to criminalize them. The accumulation of facial data on students could open the potential for profiles to be created on them without their knowledge, unfairly jeopardizing their futures. School resource officers and administrators may weaponize this new surveillance against students. Students

59

See Anya Kamenetz, The School Shootings That Weren’t, NPR: EDUCATION, (Aug. 27, 2018) https://www.npr.org/sections/ed/2018/08/27/640323347/the-school-shootings-that-werent for more reading on the incorrect federal reporting of school shootings.

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS are increasingly experiencing criminalization in schools through punitive discipline measures for minor infractions.60 The consequences for such punitive measures are dire, as research illustrates that every time a child comes into contact with the juvenile justice system, their likelihood of dropping out of school increases.61 Additionally, this threat of criminalization will not be equally borne on all students. The use of this software to detain or punish students will likely impact students of color and students with disabilities to a far greater degree. School facial surveillance threatens the already elusive idea of equal opportunity for black and brown children, who are bound to be watched more closely and punished more readily. This is also the case for students with disabilities, who, alongside black and brown students, also experience disproportionate amounts of policing. Black, brown, and disabled students are already suspended, arrested, and referred at disproportionate rates. In 2015-2016, black students lost five times the amount of instruction time as white students due to suspensions.62 Additionally, students with disabilities lost more than double the number of days of instruction than their nondisabled peers as well.63 Students with disabilities were arrested at a rate three times higher than their non-disabled peers. Black students with disabilities had an arrest rate that was three times that of white students with disabilities.64 These children are already being policed more than their white, nondisabled counterparts. Thus, there is reason to believe that facial surveillance would 60

DANIEL J. LOSEN & AMIR WHITAKER, ACLU, 11 MILLION DAYS LOST: RACE, DISCIPLINE, AND SAFETY AT U.S. PUBLIC SCHOOLS 1-15 (2019), https://www.aclu.org/sites/default/files/field document/final 11-million days ucla aclu.pdf; AMIR WHITAKER ET. AL., ACLU, COPS AND COUNSELORS: HOW THE LACK OF SCHOOL MENTAL HEALTH STAFF IS HARMING STUDENTS 24 (2019), https://www.aclu.org/sites/default/files/field document/030419acluschooldisciplinereport.pdf.

61 AMIR WHITAKER ET. AL., COPS AND COUNSELORS: HOW THE LACK OF SCHOOL MENTAL HEALTH STAFF IS HARMING STUDENTS 24 (2019), https://www.aclu.org/sites/default/files/field document/030419 acluschooldisciplinereport.pdf.

62 DANIEL J. LOSEN & AMIR WHITAKER, ACLU, 11 MILLION DAYS LOST: RACE, DISCIPLINE, AND SAFETY AT U.S. PUBLIC SCHOOLS 5 (2019), https://www.aclu.org/sites/default/files/field document/final 11-million-days ucla aclu.pdf.

63 WHITAKER ET AL., supra note 61.

64 Id.

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UCLA UNDERGRADUATE LAW JOURNAL continue the well-established practice of punishing students of color and students with disabilities. When given another tool with which to surveil and criminalize students, there is no question who school authorities will knowingly, or perhaps unknowingly, disproportionately target. By inviting facial recognition technology into schools, we allow for the tracking of a child’s mistakes and failures to follow them for years after, inviting scrutiny and aiding in delivering them on the path that society has paved for many black and brown students— into the school-to-prison pipeline. The threat of misuse of facial surveillance software is therefore compounded by the issue of racial inequity in schools and demonstrates the additional urgency of protecting children from this substantive risk.

VI. Recommendations Ultimately, legislation and judicial oversight is needed to prevent the implementation of facial surveillance software in schools. The absence of any regulation of this software, especially when it is being wielded as a tool that could criminalize students, is unacceptable. As soon as this technology is implemented in schools, it should be challenged in Court, the obvious unconstitutionality of the software should then be recognized, and its use should be halted. If the Supreme Court were to assess the use of facial recognition technology in schools, it should reflect on the futility of applying the reasonable expectation of privacy to minors and question the reasonable suspicion standard for administrative searches in light of the arguments I have set forth.

If the Court, in reviewing a case about facial recognition software in schools, defers this issue to the states or surrenders the issue to the Executive Branch under the guise of national privacy, there will be no regulation or oversight over dangerous programs that the government can use to oppress the people and children of the United States. The Court needs to weigh in on “whether the program would lead to deterrence significant enough to outweigh the curtailment of civil liberties.”65 If they defer this responsibility, because they

65

Solove, supra note 13 (case referenced is MacWade v. Kelly).

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THE UNCONSTITUTIONALITY OF FACIAL RECOGNITION SOFTWARE IN SCHOOLS accept the state or federal government’s argument that the existence of the program will simply deter school shootings, they would be, in effect, surrendering their constitutional responsibility to judicial review.

Absent a Supreme Court ruling on the issue, in the interim, legislation should be implemented to prohibit the use of this software, or, at the very least, provide substantial regulation of this technology so that children are not left defenseless. It is important to note that given our current system of assessing Fourth Amendment privacy protections, the general trend is that surveillance is accepted as legal until regulated or ruled otherwise by the Court. As this paper highlights, there should be implicit protections afforded by the Fourth Amendment as the Framers intended, rather than a selective determination after the fact. If the Fourth Amendment implicitly covers matters of privacy, privacy considerations should require that there be review and regulation of any new invasive technology prior to implementation. As law professor Daniel Solove argues, if we continue to ask if the Fourth Amendment provides protections, we will continue to evade the most important question: how it should provide protections.66 Conclusion The detriments of facial recognition surveillance in schools far outweigh any benefits that can be gained from surveilling students. Ultimately, facial recognition surveillance will serve to criminalize students. When students are criminalized, student outcomes suffer, and already entrenched disparities are deepened—particularly for students of color and students with disabilities.

Beyond all the irreversible repercussions the software will have on students, the use of facial recognition software to surveil students is fundamentally unconstitutional—it cannot be justified by reasonable suspicion, reasonable expectation of privacy, or the third-party doctrine. The software is ineffective and excessively intrusive, violating the Fourth Amendment’s protection against

66

Id. at 110.

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UCLA UNDERGRADUATE LAW JOURNAL unreasonable searches and posing a fundamental threat to our cherished notions of privacy and accountability. In the end, we all want to protect students. But in our effort to do so, we cannot indulge in seemingly simple solutions without examining the consequences that our actions will have on students. As students are rendered silent in discussions of privacy and surveillance, it is the responsibility of the law to protect them from such an intrusive technology.

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UCLA UNDERGRADUATE LAW JOURNAL Jared Kelly*

Conflict, Citizenship, and Cultural Preservation: A Framework for American Samoa & the Insular Territories ABSTRACT. The case of Fitisemanu v. United States contests a discriminatory principle that denies the recognition of citizenship to tax paying, passport holding Americans in Utah. The United States federal government does not extend the Fourteenth Amendment’s Citizenship Clause to those born in the territory of American Samoa. In the case of Fitisemanu and in prior cases, the American Samoa government has opposed the granting of citizenship to the territory by judicial exercise because the American Samoa government believes a greater application of the Fourteenth Amendment to the territory will dismantle current racial land alienation laws and erode Fa’a Samoa forms of governance. The current status of nationality law in the United States creates a citizenship hierarchy among Americans where those who are naturalized or born into an incorporated territory receive irrevocable citizenship status under the auspices of the Fourteenth Amendment’s Citizenship Clause, while those born into an unincorporated territory (Guam, the Commonwealth of Northern Mariana Islands, the United States Virgin Islands, Puerto Rico, and American Samoa) only receive citizenship if granted by the federal legislature. Any individual born into a territory which received citizenship via legislative grace can have their citizenship expatriated by an act of the United States Congress.

This article demonstrates that a legislative amendment to the procedures for the federal recognition of Indian tribes would provide a desirable remedy, allowing American Samoa to pursue citizenship for the territory and retain traditional Fa’a Samoa practices. *Jared Kelly is a recent graduate of the University of California, Berkeley. He offers his deepest gratitude to Michael Stine, Matthew Morrison, Surya Duggirala, and David Schraub whose support has made this project possible. He also extends his sincere thanks to Greg Walsh for his feedback and suggestions, and to the UCLA editorial team for investing innumerable hours into making the journal a success.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction In March 2018, three American nationals living in Utah filed suit against the Federal government in the United States District Court for Utah, alleging that the denial of birthright citizenship violated the Fourteenth Amendment.1 The plaintiffs in the case Fitisemanu v. United States believe the government’s actions constituted injury, because they are regarded as second-class, “noncitizen nationals,” and do not retain many rights afforded to citizens.2 American Samoans remain disenfranchised even when they settle in an incorporated territory. The plaintiffs aim to attain citizenship and the attendant rights and responsibilities associated with citizenship. Furthermore, the plaintiffs ask the court to extend Fourteenth Amendment constitutional birthright citizenship to all people born in American Samoa. However, such claims have previously been rejected by the courts, notably in the 2015 case of Tuaua v. United States in which the United States Court of Appeals for the District of Columbia denied citizenship to five American Samoan plaintiffs who litigated on similar grounds.3 The Court determined that only a legislative act from Congress could grant

1

Plaintiffs include - John Fitisemanu, Pale Tuli and Rosavita Tuli; see 8 U.S. C. § 1408 Nationals but not citizens of the United States at birth (“[T]he following shall be nationals, but not citizens, of the United States at birth: . . . A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession . . . .”), see 8 U.S. C. § 1101(a)(29) (“The term ‘outlying possessions of the United States’ means American Samoa and Swains Island[, an atoll located in the Tokelau chain administered as part of American Samoa].”; Dan Whitcomb, American Samoans sue U.S. seeking birthright citizenship Reuters (2018), https://www.reuters.com/article/us-usa-samoa-citizenship/american-samoans-sue-u-s-seekingbirthright-citizenship-idUSKBN1H43AG (last visited Apr 14, 2019).

2 News Release Equally American, LAWSUIT CHALLENGES DENIAL OF CITIZENSHIP IN U.S. TERRITORIES GUAM PALAU CNMI FSM NEWS | PACIFIC ISLAND TIMES (2018), http://www.pacificislandtimes.com/single-post/2018/03/29/Lawsuit-challengesCongressional-denial-of-citizenship-in-USterritories?fb_comment_id=1186203761494578_1199271466854474 (last visited Feb 02, 2019); Tuaua v. United States, 951 F. Supp. 2d 91 (D.C. 2013). (American Nationals are unable to hold government jobs requiring citizenship, pursue immigration relief for relatives, are unable to obtain travel and immigration visas available to citizens, and are ineligible for federal work-study programs.)

3 Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015).

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES American Samoans citizenship.4 The court’s decision stood fast as the Supreme Court denied certiorari without comment, despite seven amicus briefs and a petition by the former United States Solicitor General Theodore B. Olson for the Supreme Court to hear the case.5 What was notable about Tuaua was that the non-voting American Samoa Delegate to the U.S. House of Representatives, Eni Faleomavaega, filed an amicus brief on behalf of the government of American Samoa against the petitioners.6 In the brief, American Samoa argued that a statutory granting of citizenship would infringe upon Fa'a Samoa or the Samoan Way.7 American Samoa wanted to protect the system of communal land ownership where aiga (extended families) own virtually all land, and matais (chiefs) have the authority to decide where families will reside and what land they will cultivate.8 Under this system, only those with 50% American Samoan ancestry or greater can own property.9 The American Samoa government feared that court action granting American Samoans citizenship would lead to greater scrutiny of the territory’s practices. Racial land alienation policies would be invalidated as they violate the tenets of the Fourteenth Amendment's Equal Protection Clause. The court found the protection of such customs compelling and they were thus included in Judge Janice Brown’s opinion for upholding the lower court’s ruling denying

4

Id. at 312.

Tuaua v. US, 788 F.3d 300 (D.C. Cir. 2015), cert. denied, 579 U.S. _ (U.S. June 13, 2016) (No. 15-981); Petition for Writ of Certiorari, filed by Tuaua Plaintiffs, (Filed February 1, 2016) Tuaua v. United States (Case no. 15-108, 579 U.S.) (2016) 6 Brief Of The Honorable Eni F.H. Faleomavaega As Amicus Curiae in Support of Defendants, Tuaua v. United States (Case 1:12-cv-01143-RJL, 951 F. Supp. 2d 88 (D.C. 2013)), (Filed November 8, 2012) [hereinafter Faleomavaega Brief]. Later a brief was filed with the Congressman and the American Samoa Government in the Court of Appeals, See - Brief For Intervenors Or, In The Alternative, Amici Curiae The American Samoa Government And Congressman ENI F.H. Faleomavaega, Tuaua v. United States (Case no. 13-5272, 788 F.3d 300 (D.C. Cir. 2015)) (Filed August 25, 2014).

7 788 F.3d 310 (D.C. Cir. 2015).

8 Id. at 309-310.

9 Merrily Stover. "Individual Land Tenure in American Sāmoa." The Contemporary Pacific (1999): 78.

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UCLA UNDERGRADUATE LAW JOURNAL citizenship.10 Judge Brown left the question of citizenship to the discretion of Congress. The denial of citizenship for American Samoa created a significant amount of controversy as such action continued the usage of the Insular Cases, a framework established in a series of Supreme Court opinions beginning in 1901 to govern the inhabitants of newly acquired territories. The Insular Cases bestowed a series of rights upon incorporated and unincorporated territories.

The use of the Insular Cases remains controversial and presents a unique legal problem; Justice John Harlan spoke out strongly against the continued use of this precedent in his dissent in Dorr v. United States: I cannot assent to this interpretation of the Constitution. It is, I submit, so obviously inconsistent with the Constitution that I cannot regard the judgment of the court otherwise than as an amendment of that instrument by judicial construction, when a different mode of amendment is expressly provided for… such inconveniences are of slight consequence compared with the dangers to our system of government arising from judicial amendments of the Constitution.11

Today, insular governments, such as that of American Samoa, have used the doctrine to protect traditional customs, notably that of Fa’a Samoa.12 On June 08, 2018 the government of American Samoa and Congresswoman Aumua Amata asked the court to be allowed to intervene in the Fitisemanu lawsuit. In turn, the plaintiffs filed a 17-page motion on June 22, 2018 encouraging the court to deny the movants request to intervene, claiming that Amata and the American Samoa Government do not have standing in the matter.13 Citizenship for American Samoans remains a contentious issue, and despite American 10788

F.3d 312 (D.C. Cir. 2015).

Dorr v. United States, 195 U.S. 138, 49 L. Ed. 128, 24 S. Ct. 808 (1904).

12 788 F.3d 309 (D.C. Cir. 2015). [Application of the Insular Cases ‘impractical and anomalous test’ in the court’s decision, A standard that as it stands is considered by scholars to be too vague, amorphously used to a point where it is nearly impossible for courts to apply it objectively. See Jesse Merriam, A Clarification of the Constitution's Application Abroad: Making the Impracticable and Anomalous Standard More Practicable and Less Anomalous, 21 Wm. & Mary Bill Rts. J. 174, 175 (2012)].

13 Fili Sagapolutele, SALT LAKE CITIZENSHIP PLAINTIFFS CLAIM ASG AND AMATA LACK STANDING SAMOA NEWS - LATEST AND BREAKING SPORTS, POLITICS, BUSINESS, AND SAMOAN NEWS FROM PAGO PAGO, AMERICAN SAMOA (2018), http://www.samoanews.com/localnews/salt-lake-citizenship-plaintiffs-claim-asg-and-amata-lack-standing (last visited Sep 17, 2018).

11

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES Samoans being born in the United States, citizenship is not automatically conferred to them.

This article aims to demonstrate that the Insular Cases have created different classes of American citizenship status. In this system, individuals born into incorporated territories maintain an inalienable citizenship status, whereas a secondary class born in the unincorporated territories maintains citizenship that can be revoked by the legislature, and a final class born in American Samoa are designated as Americans but do not receive American citizenship. In this article, I aim to illustrate the circumstances that led to the implementation of the Insular Case doctrine. Following this background, I work through the anticitizenship position of the American Samoan government, addressing whether fears regarding the Fourteenth Amendment are founded, and whether racial land alienation laws are permissible under current jurisprudence. I then demonstrate the negative impacts of the continued use of the Insular Cases, examining the docrtine’s effects on constitutional rights in unincorporated territories. The Insular Cases do not offer clarification as to whether the citizenship status of those born into unincorporated territories is absolute or revocable and these individuals presently do not have standing to bring a case forward. Based upon prior case law and historical precedents of former territories leaving the United States, I will reveal that Congress has the power to bring forth mass expatriations for those born in unincorporated territories. To conclude the article, I forward a policy recommendation which calls for an amendment to § 83.3 in Title 25 of the Code of Federal Regulations. This regulation currently prevents Native Hawaiians and indigenous entities in the unincorporated territories from receiving the federal recognition and ‘domestic dependent nation’ status held by indigenous groups in the contiguous fortyeight states and Alaska. Federal recognition would allow American Samoa to pursue citizenship for the territory by statutory or judicial mechanisms without infringing upon Fa’a Samoa customs.

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UCLA UNDERGRADUATE LAW JOURNAL I. Background on the Insular Cases In the late 19th century, the 1898 Treaty of Paris and 1899 Tripartite Convention resulted in the American acquisition of multiple territories in the Pacific and Caribbean. The former ended the Second Samoan Civil War and split the Archipelago into two distinct political entities: one portion a United States Territory, the other a German Colony. The 1898 Treaty of Paris ended the Spanish-American War and as a result of the treaty, the Kingdom of Spain relinquished all claims of sovereignty to Cuba, Guam, the Philippines, and Puerto Rico to the United States. The United States later gained additional territories including the purchase of St. Thomas, St. Croix, St. John, and about 50 other small islands from Denmark in 1917, resulting in the acquisition of what is today known as the U.S. Virgin Islands. The U.S. also attained the Northern Mariana Islands as they were placed under the control of the United States through the Trust Territory of the Pacific Islands (TTPI) by the United Nations. The Insular Cases bestowed limited constitutional provisions to the inhabitants of the new territories. The Insular Cases, most specifically the case of Downes v. Bidwell, established a two-tiered justice system that applied different rights to ‘Incorporated’ territories (the 50 states, Washington D.C., and Palmyra Atoll) and ‘Unincorporated’ Territories (the remaining territories under United States jurisdiction).14 The unincorporated territories were areas where the United States exercised de jure sovereignty, but these territories were not considered part of the country.15 This dilemma of being neither foreign nor entirely American is captured by Justice White’s remarks in Downes in which he describes the paradox of unincorporated territories as “foreign . . . in a domestic

14

Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (1901); United States. General Accounting Office. U.S. insular areas: application of the U.S. Constitution: report to the Chairman, Committee on Resources, House of Representatives. Washington, D.C. (P.O. Box 37050, Washington, D.C. 20013): 1997. 7.

15 Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (1901); See Ochoa v. Hernandez y Morales, 230 U.S. 139, 33 S. Ct. 1033, 57 L. Ed. 1427 (1913). The Court charged with considering whether the Constitution extended to the territory of Puerto Rico, determined that Puerto Rico was subject to complete US plenary control, though it remained unincorporated, and thus the Constitution could extend to its inhabitants.

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES sense.”16 As a result, unincorporated territories had fewer constitutional constraints, and only retained rights statutorily bestowed upon them by the United States Congress. According to Justice Hugo Black in his plurality opinion in Reid v. Covert,17 it was a professed necessity for Congress to maintain flexibility to “govern temporarily territories with wholly dissimilar traditions and institutions.”18 The Insular Cases are often regarded by legal historians and scholars as having racist underpinnings, and as defining the inhabitants of recently acquired territories as second-class citizens.19 The opinions of the Insular Cases frame the new inhabitants as “unfit for citizenship,” and proclaim that their culture and geographic origin renders them unable to exercise the responsibilities of citizenship. The primary rationale for the doctrine was to prevent the United States Constitution from becoming the dominant law of the land and superseding either the Spanish civil law systems or the indigenous customs which preceded U.S. administration of the territory. However, the doctrine outlined in the Insular Cases has come under scrutiny as of late due to the overt racist overtones espoused by the justices at the time.20 Today a plethora of legal scholars see the Insular Cases as “constitutional aberrations” or as “dead letters.”21 However, the government of American Samoa has made use of the Insular Case doctrine to protect the territory’s traditions and governing practices of Fa’a Samoa.22

16

182 U.S. 341, 21 S. Ct. 770, 45 L. Ed. 1088 (1901).

Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957).

18 Id. at 14.

19 Rose Villazor, Should 'Birthright Citizenship' Be Abolished? The New York Times (2015), https://www.nytimes.com/roomfordebate/2015/08/24/should-birthright-citizenship-beabolished/the-insular-cases-are-a-cautionary-tale-in-the-citizenship-debate (last visited Mar 18, 2019).

20 Developments in the Law — The U.S. Territories, 130 HARV. L. REV. 1616, 1680 (2017). Supra See Note 174 “thoroughly ossified set of cases marked by the intrinsically racist imperialism of a previous era of United States colonial expansionism.”

21 Id., Supra Note 3.

22 Id., Supra Note 4; See 788 F.3d 302 (D.C. Cir. 2015).

17

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UCLA UNDERGRADUATE LAW JOURNAL II. Citizenship Status and the Concerns of the American Samoa Government Among the rights granted to unincorporated territories by the U.S., one particularly important right was not bestowed—that of constitutional jus soli citizenship. The denial of citizenship to the inhabitants of the territories was clearly intentional. In the first Insular Case, Downes v. Bidwell, the inhabitants of newly acquired territories were classified as ‘alien races,’23 ‘uncivilized,’24 and ‘savages,’25 and the ruling noted that “the consequences [of citizenship attainment for peoples of newly acquired territories] will be extremely serious.”26 The United States was weary in regards to granting citizenship to individuals it saw as non-American. In the years following the insular cases, unincorporated territories began to acquire statutory birthright citizenship rights through congressional action: Puerto Rico with the Jones-Shafroth Act in 1917, Guam with the Organic Act of Guam in 1950, and The Commonwealth of the Northern Mariana Islands (hereinafter CNMI) obtained citizenship in 1976 following the CMNI’s transition from a territorial trust of the United States to a commonwealth territory under 48 USC § 1801.27 The only unincorporated territory which was not granted statutory citizenship by an act of Congress was the unincorporated territory of American Samoa, where inhabitants are instead designated as “non-citizen United States nationals” and do not retain many of the rights afforded to American citizens.28 Individuals born in American Samoa gain citizenship either via jus sanguinis principles or the naturalization process afforded to foreign citizens, which is an onerous, costly, and time consuming process.

23

182 U.S. 384, 21 S. Ct. 770, 45 L. Ed. 1088 (1901).

Id. at 335.

25 Id. at 279.

26 Id. 27 Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, 7 FAM 1120: ACQUISITION OF U.S. NATIONALITY IN U.S. TERRITORIES AND POSSESSIONS (2017), https://fam.state.gov/fam/07fam/07fam1120.html (last visited Sep 18, 2018), See also Sabangan v. Powell, 375 F. 3d 818 (9th Cir. 2004).

28 Tuaua v. US, 951 F. Supp. 2d 91 (D.C. 2013).

24

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES Despite the lack of American citizenship in its territory, the government of American Samoa has fought to protect the status quo for reasons of cultural selfpreservation. In the case of Tuaua v. United States, American Samoa’s nonvoting delegate to the House of Representatives Eni Faleomavaega submitted a brief on behalf of the American Samoa government requesting that the Supreme Court deny certiorari to the case; their primary concern was that the potential application of the Fourteenth Amendment to the territory would dismantle the practice of land discrimination and more importantly, would destroy the system of Fa'a Samoa. Fa’a Samoa has allowed for the privileges of American Samoa’s sui generis governance, which has often deviated from the principles set forth in the U.S. Constitution. The government has denied U.S. Constitutional provisions to inhabitants, a practice which the U.S. has implicitly endorsed. For instance, only matais—the holders of family chief titles, who ensure the protection of customary land and the welfare of the extended family ['aiga]— had the right to vote until 1990, a clear violation of Fifteenth Amendment rights.

Similarly, the government of American Samoa denies Sixth Amendment rights to those on trial, and a federal court determined the American Samoa government was within its right to limit such protections.29 As American Samoa has long enjoyed this kind of quasi-independent governance, the Faleomavaega brief contained a speculative concern that the island would not be able to preserve race-based land alienation laws, a notion it feared would subject its policies to greater scrutiny under the Fourteenth Amendment and result in the potential declaration of Fa’a Samoa as facially invalid. Currently, American Samoa preserves its culture through the usage of the Insular Cases. Former president of the American Samoa Bar, Sean Morrison, states in the Hastings 29

Asofou So’o and Jon Fraenkel. "The Role of Ballot Chiefs (Matai Pälota) and Political Parties in Sämoa's Shift to Universal Suffrage." Commonwealth & Comparative Politics 43, no. 3 (2005): at 333; King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975). See also Daniel E. Hall, Curfews, Culture, and Custom in American Samoa: An Analytical Map for Applying the U.S. Constitution to U.S. Territories, 2 APLPJ [i], 107 (2001) at 73-75 (Secretary of interior approved the constitution of American Samoa in 1967 and shortly thereafter Congress limited the Department of the Interior's ability to meddle with the American Samoa constitution, as any amendments to the American Samoa Constitution require congressional approval (48 USC § 1662 (a)1987))

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UCLA UNDERGRADUATE LAW JOURNAL Constitutional Law Review that altering the discriminatory land system would decimate what remains of American Samoa tradition, as the whole fabric of American Samoan society relies on discriminatory principles.30 The following question thus remains: Do American Samoa’s racial land alienation laws lend themselves to American Samoan self-governance?

III. Is Racial Land Alienation Permissible?

United States case law from 1917-2019 demonstrates the United States will not tolerate actions preventing individuals from acquiescing property on the basis of race, creed, or ethnic origin in incorporated territories. 31 The Fa’a Samoa system places an explicit racial criterion on property ownership, participation in government, eligibility for elected office, and access to business opportunities. However, American Samoa has precedent to defend its position of racial discrimination. In the 1974 case of Morton v. Mancari,32 the United States Supreme Court held that a preference for hiring Native Americans in the Bureau of Indian Affairs did not constitute invidious racial discrimination or preference but was rather a criterion designed to further the federal objective of Native American self-governance.33 However, applying indigenous standards to non-members of the tribe has been a widely debated issue. In the case of Oliphant v. Suquamish Indian Tribe, the United States Supreme Court determined that tribal courts do not have jurisdiction over non-native members, even if crimes are committed on a reservation. 34In Justice Thurgood Marshall’s dissent, he 30

Sean Morrison. "Foreign in a Domestic Sense: American Samoa and the Last US Nationals."

Hastings Const. LQ 41 (2013): 81, "The communal land and matai systems are such pillars of the cultural system that there is a widespread fear that any change to the political structure may affect their durability. Once the system of land ownership is put in jeopardy, 'the whole fiber, the whole pattern of the Samoan way of life will be forever destroyed.' ... Similarly, a threat to the matai hierarchy would undermine the very social fabric of the nation, which would in turn dissolve the aiga."

31 Housing Discrimination: U.S. Supreme Court Cases, Findlaw, http://civilrights.findlaw.com/discrimination/housing-discrimination-u-s-supreme-courtcases.html (last visited Sep 19, 2018).

32 Morton v. Mancari, 417 US 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974).

33 Id. 34 Oliphant v. Suquamish Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978).

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES proclaimed tribal jurisdiction to prosecute criminal acts committed on tribal land was a sine qua non of the sovereignty of the Suquamish nation.35 Later Supreme Court decisions seemed to further limit the bounds of Native American sovereignty. Notably, the case of Montana v. United States held that a Native American tribe’s sovereign powers do not extend to the activities of nonmembers of the tribe except to the extent which it is necessary to control internal relations or protect tribal self-government.36 Such a standard would seem to preclude American Samoa from exercising many aspects of Fa’a Samoa, namely, racial land alienation laws and disenfranchisement based upon race.

However, land alienation laws are actually permissible under Montana as they act in accordance with the indigenous group’s attempt "to protect tribal selfgovernment or to control internal relations”37 Furthering the political rights of federally recognized tribes is a compelling interest of the United States. If American Samoa’s racially based Fa’a Samoa policies were shown to further the interests of indigenous self-governance, such a policy might be deemed permissible.

The constitutionality of American Samoa’s land alienation laws was challenged in the case of Craddick v. Territorial Registrar.38 The court held that racially restrictive land alienation laws survived strict scrutiny under Fourteenth Amendment challenges, when taking into consideration factors such as the importance of land in American Samoan customs.39 The case took place in the High Court of American Samoa, yet the court was supervised by two federal 35

Id. Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981).

37 Id. at 564.

38 Craddick v. Territorial Registrar, 1 Am. Samoa 2d 10 (1980).

39 Id. - Justice Edward Schwartz “It is common knowledge in American Samoa, to the extent that this Court could properly take judicial notice, that the most valuable tangible thing that the Samoan people possess is the land, and that the average Samoan needs statutory protection regarding alienation of land if he is not to lose it forever. Were it not for the statutory protection, it is not an exaggeration to say that a great deal of the communal land would have been lost to the Samoans by this time, either through the generosity, ignorance or incompetence of the Matai or by the irresistible monetary temptation offered either by Samoans with financial means or by Americans and other tourists to this island who would certainly like to acquire real property in this beautiful area.”

36

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UCLA UNDERGRADUATE LAW JOURNAL judges. An opinion written by Edward Schwartz, the chief judge of the U.S. District Court for the Southern District of California, acknowledged the cultural importance of discriminatory practices in American Samoa, stating: “the whole fiber of the social, economic, traditional, and political pattern in American Samoa is woven fully by the strong thread which the American Samoan places in the ownership of land.”40 The decision in Craddick provided two insights into racial alienation laws: first, they withstood “the rigorous scrutiny of a watchful court”41and second, they served a “compelling state need to preserve an entire culture.”42 This precedent was strengthened following a 1990 federal court case involving racial land alienation in an insular territory where inhabitants received statutory birthright citizenship. In the 1990 case of Wabol v. Villacrusis,43 the United States Court of Appeals for the Ninth Circuit addressed the question of whether indigenous land alienation policies violated Fourteenth Amendment equal protection principles in the Commonwealth of Northern Mariana Islands (CNMI). In the CNMI, blood quantum laws require at least 1/14th Chamorro or Carolinian ancestry to own property, alienating most residents who are of ethnic Filipino origin. The Wabol court upheld land alienation policies as Judge Cecil Poole determined the Equal Protection Clause of the Fourteenth Amendment did not threaten discriminatory property laws, because land in the commonwealth was scarce and native land ownership played a vital role in preserving cultural stability.44 Furthermore, Poole stated the Bill of Rights was not intended “to operate as a genocide pact for diverse native cultures”45 and further stating, “It would truly be anomalous to construe the equal protection clause to force the United States to break its pledge to preserve and protect CNMI culture and property.”46 American Samoa is similar to the CMNI as it has a scarce amount of land, and the racial policies which stem from Fa’a Samoa 40

Id. at 14 (quoting Haleck v. Lee, 4 Am. Samoa 519, 551 (1964)).

Id. at 12 42 Id. 43 Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990), cert. denied sub nom., Philippine Goods, Inc. v. Wabol, 506 U.S. 1027, 113 S. Ct. 675, 121 L. Ed. 2d 598 (1992).

44 Id. at 1461.

45 Id. at 1462.

46 Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990), 1462.

41

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES are in place to protect indigenous cultures, a notion protected under the precedent set in Wabol.47 American Samoa’s racial land alienation law has survived strict scrutiny, and challenges to similar measures in other territories were also protected in federal court. The rulings in both Wabol and Craddick demonstrate the courts’ willingness to protect the unique cultural interests of the insular territories, suggesting that Fa’a Samoa would stand if faced with Fourteenth Amendment challenges based on the Equal Protection Clause. Both American Samoa and the CNMI are subject to the rulings of the Ninth Circuit, and since Wabol has not been overruled, it remains the precedent for American Samoa. Despite American Samoa government fears of Fourteenth Amendment challenges, conferring statutory or juridical birthright citizenship would not jeopardize racebased land alienation laws once political and cultural considerations are evaluated based on the precedent set forth in Wabol. As a consequence, American Samoa could retain racially discriminatory land policies in conjunction with American citizenship bestowed upon residents at birth.

IV. The Negative Externalities of Continued Use of the Insular Cases American Samoa’s continued reliance on the Insular Cases to protect its cultural heritage is not only unnecessary to fulfill this aim, but also has consequences for other insular territories: abiding by this outdated legal reasoning makes constitutional rights discretionary, creates a multi-tier citizenship case system, and places the citizenship of those born in unincorporated territories in jeopardy. Some constitutional rights such as the Sixth Amendment are not granted to inhabitants of the insular territory, unless prescribed by territorial officials. The Framers did not intend the Constitution 47

Id. - “It would be truly anomalous to construe the equal protection clause [of the U.S. Constitution] to force the United States to break its pledge to preserve and protect [Northern Mariana Islands] culture and property.”

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UCLA UNDERGRADUATE LAW JOURNAL to be a conditional document where rights could be arbitrarily revoked by the whims of the government or be suspended when convenient. This highlights a problem of inconsistency that needs to be remedied and addressing the issue of citizenship is a key part of such reform.

This danger is captured in the plurality opinion of Justice Hugo Black in Reid v. Covert where he noted the lack of logic behind granting arbitrary constitutional rights to incorporated and unincorporated territories.48 As such, Black recommended the Insular Cases not be expounded upon in the future.

Nonetheless, the doctrine has since been built upon by the Supreme Court.49 Such an approach may have unintended consequences, most notably lawful racial discrimination against groups which do not fit the criterion of a federallyprotected group. This is likely to be a challenge in a territory such as Guam if the territory were to receive federal protection but not equal constitutional rights as the island retains a diverse population, but also a significant indigenous population with the Chamorro People. Citizenship issues will arise when interracial marriages and miscegenation occur. The problem of lawful racial discrimination in U.S. territories can be observed in Davis v. Guam, a Department of Justice lawsuit against the government of Guam. According to the complaint, a black American was evicted from the house he built and leased with his Chamorro wife. Following the death of his wife, the husband was evicted by the Chamorro Land Trust Commission because he was not “blood Chamorro” and therefore did not have the eligibility to lease land from the Chamorro Land Trust Commission—a government agency which limits the eligibility to lease land in certain areas of Guam to native Chamorros.50 The United States government is challenging the commission’s implementation of the Chamorro Land Trust Act as it discriminates against non-Chamorros. The

48

354 U.S. 9, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957). v. Bush, 553 U.S. 723, 128 S. Ct. 2235-2236, 171 L. Ed. 2d 41 (2008).

50 Rose Cuison Villazor, Commentary, Problematizing the Protection of Culture and the Insular Cases, 131 Harv. L. Rev. F. 127 (2018), see Supra note 152 (complaint referenced below) https://harvardlawreview.org/2018/04/problematizing-the-protection-of-culture/. Complaint on 21 Guam Code Ann. § 75107(a) (2017), United States v. Guam, No. 17-00113 (District of Guam filed Sept. 29, 2017), https://www.justice.gov/opa/press-release/file/999936/download 49Boumediene

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES federal government sees such actions as blatant instances of racial discrimination and seeks to enjoin such practices. Such suits may become common in Hawaii and the insular territories as a surviving spouse or descendants may not meet a specific blood quantum criterion or lineal descent threshold and thus may be deprived of political rights. This situation presents a catch-twenty-two for the government as one group’s right will be impinged no matter the outcome. If the government maintains the status quo, American Samoans remain disenfranchised, and those with citizenship in insular territories maintain a revocable form of citizenship. The alternative that would occur in a new system that grants citizenship rights and full protection of the Constitution is that individuals with indigenous partners in Hawaii or the unincorporated territories would be denied some property and political rights under an indigenous governance framework, giving the state and unincorporated territories similar status to Alaska and the forty-eight contiguous states.

The vagaries in applying the Constitution to unincorporated territories can be seen in the case of Harris v. Rosario, where the court determined that the congressional withholding of aid to children of Puerto Rican families was permissible with the application of a rational basis review, thus circumventing the Fourteenth Amendment.51 Such actions create a pluralist Constitution where a caste of individuals are guaranteed all rights while an “under caste” only receives select rights. This establishes a dangerous precedent, bestowing 51

In Harris v. Rosario, 446 U.S. 651 (1980), the Court applied Califano v. Torres, 435 U.S. 1 (1978) in a succinct per curiam order, holding that less aid to Puerto Rican families with dependent children did not violate the Equal Protection Clause, because in U.S. territories Congress can discriminate against its citizens applying a rational basis review. Discrimination against incorporated territories in this matter would not be feasible. Rational basis is the primary standard of review courts will use when considering constitutional questions. However, the right to citizenship is considered a fundamental right as per the citizenship clause of the Fourteenth Amendment. When a fundamental right is implicated, the court should apply a higher level of scrutiny. As a result of the Incorporation doctrine resulting from the insular cases, citizenship and the Fourteenth Amendment are not considered fundamental rights in unincorporated territories and thus a lower standard of review can be applied, whereas if such a question arose in an incorporated territory it would necessitate the court apply a higher standard of scrutiny.

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UCLA UNDERGRADUATE LAW JOURNAL Congress with the ability to withhold rights according to whim. Constitutional rights were not intended to be arbitrarily suspended when determined inconvenient by the government.52 The revocability of rights by Congress is not based upon due process but rather is unjustly determined by where the individuals were born in the United States and their legal status. American nationals of Samoan ethnicity are permanently disenfranchised unless they undergo the naturalization process, while those born in other unincorporated territories are only franchised once they relocate to a permanent territory.

Action on behalf of a federal court to grant residents of unincorporated territories citizenship rights under the Fourteenth Amendment would eliminate the arbitrariness of allowing Congress to legislate which American nationals deserve citizenship and ultimately address the question of the limits of statutory citizenship.

Following the Circuit court’s ruling in Tuaua, ranking officials of the unincorporated territories outside American Samoa filed an amicus brief urging the Supreme Court to grant certiorari in the Brief of Current and Former Territorial Governmental Officials.53 In the brief, the petitioners refuted the claims presented in the Faleomavaega Brief that racial land alienation policies 52

Reid v. Covert, 354 U.S. 14, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957), "The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government". See John Harlan Dissent - Dorr v. United States, 195 U.S. 155, 49 L. Ed. 128, 24 S. Ct. 808 (1904), “I cannot assent to this interpretation of the Constitution. It is, I submit, so obviously inconsistent with the Constitution that I cannot regard the judgment of the court otherwise than as an amendment of that instrument by judicial construction, when a different mode of amendment is expressly provided for. Grand juries and petit juries may be, at times, somewhat inconvenient in the administration of criminal justice in the Philippines. But such inconveniences are of slight consequence compared with the dangers to our system of government arising from judicial amendments of the Constitution.”

53 Supra Note 1 - Brief of Current and Former Territorial Governmental Officials [Current officials: Congresswoman Stacey Plaskett (U.S. Virgin Islands) and Congresswoman Madeleine Bordallo (Guam). Former elected officials: Governors Pedro Rosselló (Puerto Rico), Felix Camacho (Guam), Carl Gutierrez (Guam), Joseph Ada (Guam), Charles Turnbull (Virgin Islands), John de Jongh, Jr. (Virgin Islands), and former Congresswoman Donna Christensen (Virgin Islands). Former federal officials include Assistant Secretary of Interior Tony Babauta of Guam and oversaw the Office of Insular Affairs from 2009-2012.]

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES would be disenfranchised by the constitutional granting of jus soli citizenship to those born in unincorporated territories. Furthermore, the petitioners requested Supreme Court clarification on the citizenship status of the over four million inhabitants of the U.S. unincorporated territories. Tuaua held that jus soli citizenship is not a “fundamental” right of the territorial incorporation doctrine, causing severe consequences for unincorporated U.S. states and territories. This holding gives Congress the power to rescind citizenship protections to unincorporated territories which attained citizenship through statutory measures. Since the citizenship of individuals in unincorporated territories is conditioned by legislative grace, Congress may choose not to maintain the citizenship enshrined to other citizens who are born in an incorporated territory or undergo the naturalization process through the Fourteenth Amendment. As it stands, citizenship that was granted statutorily can be revoked. If Congress saw fit to roll back citizenship rights, the Tuaua case could prove significant—as it implies the provisions of the Fourteenth Amendment are not applicable to inhabitants of the unincorporated territories.

The courts have allowed significant discretion for Congress to scale back fundamental constitutional rights. It is not difficult to imagine Congress revoking citizenship for inhabitants of unincorporated territories, particularly in Puerto Rico, where referendums for secession from the United States in favor of their own sovereignty occurred in 1998, 2012, and 2017. If Puerto Rican voters choose independence and withdraw from the United States, congressionally sanctioned mass citizenship revocations would be a likely outcome. Puerto Rican independence represents a hypothetical situation where citizenship can be revoked without court precedent to decide the constitutionality of the decision, and further demonstrates the need for the conferral of citizenship rights through a framework that guarantees citizenship while simultaneously allowing for indigenous customs and practices to remain part of the government’s framework.

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UCLA UNDERGRADUATE LAW JOURNAL The Supreme Court affirmed the revocability of statutory citizenship in Rogers v. Bellei,54 ruling that Congress could revoke the citizenship of an individual who obtained citizenship via statute rather than Fourteenth Amendment principles. Following the decision of the Bellei court, the Congressional Research Service pronounced, “the Fourteenth Amendment would not restrain Congress’ discretion in legislating about the citizenship status of Puerto Rico.”55 Those with statutory citizenship have no recourse to change their status. This was affirmed in the 1998 case of Efron v. United States.56 Jennifer Efron, a United States citizen born Puerto Rico residing in Florida, sought to attain constitutional citizenship through the naturalization process.57 Efron feared Congress could enact a plebiscitary statute to denaturalize individuals born in Puerto Rico. Despite Efron’s claim of injury from potential expatriation, the court rejected her assertions, claiming they were “too speculative to create a substantial justiciable controversy.”58 The court prevented her from undergoing the naturalization process despite pending legislation which could have revoked her citizenship.59 The Supreme Court 54

Rogers v. Bellei, 401 U.S. 815, 91 S. Ct. 1060, 28 L. Ed. 2d 499 (1971).

Memorandum from Cong. Research Serv. (J.H. Killian), to the Honorable Bennett Johnston and Laura Hudson: Discretion of Congress Respecting Citizenship Status of Puerto Ricans (Mar. 9, 1989). [Pg. CRS -4 / 84] “In that perspective, then, the limitation of the first sentence of §1 of the Fourteenth Amendment would not restrain Congress' discretion in legislating about the citizenship status of Puerto Rico. Of course, some Puerto Ricans do have "Fourteenth Amendment citizenship." That is, those who were born in the United States are within the meaning of §1 and are therefore constitutional citizens from birth. Cf. United States v. Wong Kim Ark, 169 U.S. 649 (1898).

As to them, either dual citizenship or some treaty provision requiring some choice might be alternatives.”

56 Efron by and Through Efron v. United States, 1 F. Supp. 2d 1468 (S.D. Fla. 1998).

57 Id. at 1469.

58 Id. at 1470.

59 All individuals born in the commonwealth of Puerto Rico enjoy citizenship by virtue of statute more specifically the Immigration and Nationality Act of 1952 (28 U.S.C. § 1402 (2000).

Pursuant to 8 U.S.C. § 1402, all persons born in Puerto Rico after January 13, 1941, who are “subject to the jurisdiction of the United States, are citizens of the United States at birth.”) Efron was alarmed at what was termed the “Young Bill” [3H.R. 856, 105th Congress, § 4(a)(B)(4) (1997)] which required the choice of Puerto Ricans to choose between statehood and independence. If independence were elected Congress would automatically revoke the statutory US citizenship of the Puerto Ricans who resided on the island. The Young Bill passed in the House of Representatives with a vote of 209-208; however, the bill died after it failed to reach a vote in 55

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES summarily affirmed the decision a year later without providing an explanation and effectively precluding future attempts by her and other inhabitants of the insular territories to attain constitutional citizenship.60 As a result, those born into insular territories with statutory citizenship cannot pursue naturalization; nor can they challenge the status quo as they do not have standing. To make matters worse, if they reside in an unincorporated territory, they do not have the power to elect a voting member of Congress who can implement change on the national level.

V. Recommendations A prescription to address the problem is for a legislative repeal of 25 C.F.R. § 83.3, which limits the application of federal tribal recognition to groups that reside only within Alaska and the forty-eight contiguous states. This would protect cultural practices in the face of citizenship challenges, allowing American Samoa to pursue citizenship rights for its inhabitants. Such action would shelter the system of Fa’a Samoa in the future if legislative or judicial questions arise regarding the citizenship status of American Samoans.

Furthermore, other unincorporated territories are free to attempt to resolve the question if their citizenship is conditional or based upon Fourteenth Amendment principles. Such actions will not place American Samoa’s policies under greater Fourteenth Amendment scrutiny.

Native Americans and Alaskans were once in a position similar to that of American Samoans. Individuals were denied citizenship, and much like the plaintiffs in the Tuaua and Fitisemanu cases, attempted to gain such recognition

the Senate. Congress is not bound by any constitutional constraints in this matter; furthermore, the executive branch declared that such an action would be permissible in President’s Task Force on Puerto Rico’s Status. The task force concluded if Puerto Rico ever attained independence, those born in Puerto Rico would inevitably “cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty.” (President’s Task Force on Puerto Rico’s Status, Report by the President’s Task Force on Puerto Rico’s Status [2005], at 9.)

60 Efron ex rel. Efron v. U.S., 528 U.S. 987 (1999).

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UCLA UNDERGRADUATE LAW JOURNAL through judicial action on based on the Fourteenth Amendment’s Citizenship Clause. The failure of the court to grant citizenship or the tendency of plaintiffs to use the Fourteenth Amendment to argue for citizenship was seen in an earlier era. Notably, in the 1884 Supreme Court case of Elk v. Wilkins where the Court determined that John Elk, a Native American who renounced allegiance to the Winnebago Tribe, did not become subject to the jurisdiction of the United States and was therefore not a citizen. This occurred as the court determined foreign nationals and Native Americans were not citizens of the United States as they did not maintain exclusive fidelity to the United States. Further, they could not unilaterally expatriate themselves from their previous allegiance, and ally with the United States on their own accord.61 Such a notion seems to be supported by the architects of the Fourteenth Amendment. The Fourteenth Amendment was originally based upon the Civil Rights Act of 1866 which decreed that “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”62 However, the 39th Congress wanted to ensure the longevity of the act, as it was initially very contentious; the act overrode a veto by president Andrew Johnson with votes from 2/3rds of both houses.63 However, in the text of the Fourteenth Amendment, there is a clear departure from the 1866 text: notably, the omission of the phrase “Indians not taxed.” Michigan Senator and architect of the Amendment Jacob M. Howard defended the new language proclaiming the Amendment would not make Native Americans citizens of the United States stating, “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in 61

Elk v. Wilkins, 112 U.S. 94, 5 S. Ct. 41, 28 L. Ed. 643 (1884); “The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States” at 100.

62 Cole, David. "Are foreign nationals entitled to the same constitutional rights as citizens." T. Jefferson L. Rev. 25 (2002): at 375; see United States v. Wong Kim Ark, 169 U.S. 675, 18 S. Ct. 456, 42 L. Ed. 890 (1898).

63 Kohl, Robert L. "The Civil Rights Act of 1866, Its Hour Come Round at Last: Jones v. Alfred H. Mayer Co." Virginia Law Review 55, no. 2 (1969): at 272. doi:10.2307/1071789.

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES our legislation and jurisprudence, as being quasi foreign nations.”64 The Supreme Court’s ruling in Elk V. Wilkins affirmed that Native Americans are subject to the jurisdiction of their tribes. This shows that Native Americans were not seen as Americans because they owed their allegiance to nations which were not part of the United States, to indigenous governments the United States needed to contract with. Today, Native Americans and their governments are part of the United States and operate with a significant degree of independence in a similar fashion to American Samoa. Both American Samoa and Native American sovereign nations remain subject to federal law.

Like inhabitants of the insular territories, Native Americans were extended offers of citizenship through statutory measures. In 1870, Congress began to extend citizenship offers to various Native American tribes throughout the United States where any member of a specific tribe could become a citizen of the United States if he or she so desired. Congress extended its Article I powers to "establish an uniform Rule of Naturalization...." to tribes it believed fit the criterion for American citizenship.65 However, Native Americans and Alaskans did not receive universal citizenship by decree until the twentieth century under The Indian Citizenship Act of 1924 that granted citizenship to indigenous Americans.66 Since receiving citizenship, Native Americans have existed under a unique legal framework, as they receive citizenship at birth, are born into an incorporated territory, and are not completely bound by the jurisdiction of the United States.

The United States federal government has created unique statuses for Native American and Alaskan tribes. Many tribes are recognized as sovereign nations but still reside under some of the laws of the United States, and the respective state which the tribal nation is located. Federally recognized tribes

64

The Congressional Globe, THE LIBRARY OF CONGRESS (1866), https://www.loc.gov/law/help/citizenship/pdf/congressglobe_2890.pdf (last visited Jan 24, 2019).

65U.S. Const. art. I, § 8, cl. 4 66 Congress Granted Citizenship to All Native Americans Born in the U.S., http://www.americaslibrary.gov/jb/jazz/jb_jazz_citizens_1.html (last visited Mar 18, 2019).

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UCLA UNDERGRADUATE LAW JOURNAL are termed “domestic dependent nations” that have a right to semiindependent governance, within reason under United States law. In turn, the United States has “special trust obligations” toward federally-recognized tribes to protect the right to self-government, protect tribal lands and resources, and to provide support and services deemed necessary for tribal advancement.

Similar to the U.S. government's relationship to American Samoa, federallyrecognized tribes are both beholden to the federal government and independent of it. Sovereign nations support the rights and interests of their people and as a result, manage tribal property, define their own membership, and regulate both domestic and tribal business relations. As a result, many sovereign nations under their sui generis authority employ discriminatory practices based upon blood quantum and/or lineal descent principles.

Despite the fact that sovereign nations within incorporated territories are bound by the full force of the United States Constitution, such discriminatory practices remain permissible under current jurisprudence. Congress has imposed portions of the Bill of Rights onto sovereign nations, including the right to due process and Fourteenth Amendment’s Equal Protection Clause, however sovereign nations have the authority and autonomy to interpret such measures in a different manner than the federal government.67 As a result, Native American tribes can practice racially discriminatory customs based upon blood quantum and/or lineal descent. The deference to Native American sovereignty can be seen in Justice Souter’s statements in the concurring opinion in Nevada v. Hicks. Though concurring opinions do not have the force of law, Souter’s opinion demonstrates the wide range of power Native American tribes maintain, as he states: “the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes.”68 Furthermore, to bolster the strength of such

67

United States v. Lara, 541 U.S. 193, 215 (2004) (Thomas, J., concurring) (expressing skepticism about these “two largely incompatible and doubtful assumptions”) See Nevada v.

Hicks, 533 U.S. 384, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001),(Souter, J., concurring) (noting that tribal law is frequently unwritten and based on tribal norms and values) (citing Nell Jessup Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285, 343–44 (1998)).

68 Id. at 383.

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES practices, taking into account ethnic origin is permissible as a criterion as a means to strengthen self-sovereignty and protect the political rights of federallyrecognized tribes. Such a standard was declared permissible in Morton v.

Mancari.69 This extra-constitutional arrangement of domestic dependent nations seen

by Native American tribes could apply to indigenous groups in insular territories, notably American Samoa. Such a measure would protect indigenous customs allow the territory to continue sui generis constitutional flexibility while simultaneously leaving room for strides in citizenship either by legislative or juridical grace that would not impact their customs, and allow the citizenship question of other insular territories to be answered. Such an option is feasible because the Supreme Court has identified policies that forward indigenous selfgovernance as a compelling United States interest.70 In American Samoan culture, land retention serves a deeper value than providing shelter, sustenance, or capital for the living; it memorializes ancestors as the deceased are typically buried in front of a property’s main entrance.71 Additionally, matais receive their authority to govern from the land they retain. Preserving land for American Samoans furthers the goal of indigenous political sovereignty, a compelling interest in the United States and the standard that led to the decision in Mancari.

Furthermore, American Samoa’s high court in Craddick v. Territorial Registrar used the compelling political sovereignty interest to uphold racial land alienation restrictions.72 However, a major impediment preventing American Samoa from receiving federal tribal recognition is 25 C.F.R. § 83.3. The statue only allows the application of federal tribal recognition to “indigenous entities… that are not federally recognized Indian tribes,” that reside within Alaska and the lower 48

69

Morton v. Mancari, 417 US 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974).

Id. 71 Ivy Yeung. "The Price of Citizenship: Would Citizenship Cost American Samoa Its National Identity." APLPJ 17 (2015): Supra note 267 at 28.

72 Rose Cuison Villazor. "Blood Quantum Land Laws and The Race Versus Political Identity Dilemma." Cal. L. Rev. 96 (2008): Supra note 34, at 833.

70

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UCLA UNDERGRADUATE LAW JOURNAL states.73 25 C.F.R. § 83.3 explicitly prevents Native Hawaiians and the indigenous inhabitants of the Insular territories from applying for federal tribal recognition. In order for American Samoa to be eligible for federal tribal recognition, a legislative referendum would need to occur on the statute.

However, American Samoa’s citizenship position does not allow the inhabitants to vote for an elected official who could advocate on this issue and institute reform. A reform on this statute would provide American Samoans with the framework to gain jus soli citizenship while maintaining their current practices.

Both the land of federally-recognized tribes and American Samoa are administered by the Department of the Interior through the Department of Insular Affairs, and the Bureau of Indian Affairs. Despite the limitations of 25 C.F.R. § 83.3, the Department of the Interior view securing indigenous governance as a compelling interest of the department, as exemplified through the department’s attempts to establish a pathway for Native Hawaiians to establish their own independent government.74 Ultimately, such an approach avoids the Faustian bargain that the territory would subject itself to the full force of the Fourteenth Amendment and dismantle Fa’a Samoa in exchange for inhabitant citizenship, or that it maintain the citizenship caste system.

Congress still has the authority to dictate which Constitutional rights are permissible, and what rights are exclusionary for American Samoa. Congress has the authority to alter American Samoa’s constitution, and any amendments to the American Samoa constitution require congressional approval. American Samoa’s discriminatory land policy comes from 27 ASC 204 (B) which maintained its constitutionality during the Craddick case as it furthered the protection of Samoan lands which was a permissible state objective under Article I Section 3 of the territory’s constitution. Furthermore, the court in

73

Rose Cuison Villazor, Commentary, Problematizing the Protection of Culture and the Insular Cases, 131 Harv. L. Rev. F. 127 (2018), see Supra note 99, https://harvardlawreview.org/2018/04/problematizing-the-protection-of-culture/.

74Interior Department Finalizes Pathway to Reestablish a Formal Government-to-Government Relationship with the Native Hawaiian Community, Press Releases - Archive (2016), https://www.doi.gov/pressreleases/interior-department-finalizes-pathway-reestablish-formalgovernment-government (last visited Oct 7, 2018).

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CONFLICT, CITIZENSHIP, AND CULTURAL PRESERVATION: A FRAMEWORK FOR AMERICAN SAMOA & THE INSULAR TERRITORIES Craddick stated that the island’s discriminatory policies could operate independently of the racial discrimination the Fourteenth Amendment attempted to bar, as the policy lends itself to the protection of American Samoan lands. If Congress sees it fit to roll back these protections, they have the authority to do so.75 As the law currently stands, American Samoa is treated as domestic dependent nation much as federally recognized sovereign nations are.

Both are quite independent in terms of their governance, and are administered by the Department of the Interior. Legislation granting American Samoa sovereign nation status would give the territory's Fa’a Samoa practices a greater degree of statutory protection in the face of future Fourteenth Amendment challenges. This option should serve as a preferable alternative to selfgovernance than the reliance on the Insular Cases which disenfranchises American Samoans and forwards an uncertain status on those born in other insular territories.

Conclusion American Samoans are in a nebulous period, as they do not exercise rights afforded to citizens. Notably, most American nationals have little democratic power and recourse to change their position even if they decide to migrate to the mainland. According to Christina Duffy Ponsa, the Kraus Professor of Legal History at Columbia Law School, before an organic act was adopted in Puerto Rico, Puerto Ricans had an “undefined status that seemed to amount to little more than an embellished form of statelessness.”76 Today many American Samoans belong to a similarly ambiguous citizenship category. The pursuit of citizenship for American Samoans is necessary, because American Samoans currently live at the bottom of the citizenship caste system, not entitled to the basic rights retained by all other Americans. In addition, the current system encouraged by American Samoa puts its residents who are unable to obtain 75

48 USC § 1662 (a)1987.

Christina Duffy Ponsa-Kraus, When Statehood Was Autonomy, in Reconsidering the Insular Cases 1, 25 (Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015).

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UCLA UNDERGRADUATE LAW JOURNAL citizenship at a disadvantage. As such the Insular Cases are ‘questionable’ and the doctrine that results from the decisions should be discarded.77 Furthermore, the United States should choose not to encourage a doctrine fraught with “racist underpinnings,” but rather err toward a framework that prevents allows American Samoans franchise, while simultaneously protecting indigenous customs.

77

446 U.S. 653, 100 S. Ct. 1929, 64 L. Ed. 2d 587 (1980), Justice Thurgood Marshall dissent “[T]he present validity of those decisions (The insular cases) is questionable”.

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UCLA UNDERGRADUATE LAW JOURNAL Dylan Shamoon*

SEC Regulatory Ambiguity: Why Congress Should Pass New Legislation Regulating Cryptocurrencies ABSTRACT. Cryptocurrencies are digital currencies that employ various encryption methods to execute transactions without the necessity of third-party involvement. While some consider cryptocurrencies to be a form of investment, many use digital currencies to execute trades and purchase goods. The cryptocurrency market, however, has become highly volatile as a result of the ambiguous regulatory decisions made by the United States Securities and Exchange Commission (SEC) concerning the security status of individual cryptocurrencies. Their security status determines who may purchase and use the currency, and which regulatory requirements the developers of that cryptocurrency must meet. This article explores the difficulty in applying current security laws to cryptocurrencies by examining the criteria used to define securities as established by the United States Supreme Court, and by analyzing the implications of various SEC decisions and public statements. Furthermore, it examines how the SEC has resorted to using broad and arbitrary benchmarks to compensate for outdated security standards, which has resulted in legal issues and market-wide regulatory uncertainty. The article then concludes by evaluating and advocating for the adoption of the Token Taxonomy Act, which outlines detailed classification criteria for securities and therefore, offers a comprehensive solution to regulating cryptocurrencies.

*Dylan Shamoon is a third-year political science major at the University of California, Los Angeles. His academic interests include real estate, banking, and finance law. He plans on pursuing those interests in law school after graduating.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction The rise of cryptocurrencies in the context of rapidly intensifying global connectivity has initiated an extensive legal debate about their financial status in the American economy. On account of the potential for cryptocurrencies to dramatically reshape the future of national business and trade, serious dissension has emerged concerning how these currencies should be regulated.

Cryptocurrencies are digital currencies that use various encryption methods to execute transactions. Additionally, they use a public ledger, which keeps track of wallet balances and transaction history. Cryptocurrencies eventually aim to become a completely decentralized network, where no third party controls the currency and instead relies on code to regulate transactions. The ability of cryptocurrencies to instantaneously execute such financial proceedings indicates that tangible currency such as dollars and coins may become obsolete in the near future. Consequently, the exponential growth of the cryptocurrency market has magnified the many legal concerns lawmakers have about its use, ranging from taxation to money laundering and regulation.

While the main purpose of cryptocurrencies is to execute trades and purchase goods, many consider them to be a form of investment. In fact, the entire cryptocurrency market has experienced a surge of exponential growth over the past few years, with some coins reaching a market capitalization well over 100 billion USD1. However, with such dramatic expansion comes careful scrutiny by the Securities and Exchange Commission (SEC), an agency of the United States Federal Government which enforces federal security laws to ensure that the U.S. economy is a just financial system that cultivates and maintains economic growth. A core duty of the SEC is “to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.�2 The federal agency, however, has been very vague about the criteria a cryptocurrency

1

Top 100 Cryptocurrencies by Market Capitalization, COINMARKETCAP, https://coinmarketcap.com/ (last modified Mar. 6, 2019).

2 What We Do, U.S. SECURITIES AND EXCHANGE COMMISSION, https://www.sec.gov/Article/whatwedo.html (last modified June 10, 2013).

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES must meet to be considered a security; such ambiguity has caused confusion among investors and users.

Additional complications arise when examining how individual cryptocurrencies are created. While the SEC has historically been unclear about its consideration of certain cryptocurrencies as securities, the agency has recently provided some clarification. Such inconsistency in regulation has created ambiguity regarding the government’s role in the digital realm of currency. For example, Initial Coin Offerings (ICOs), fundraising techniques used by entities looking to create, develop, and launch a cryptocurrency into the market and generally sold in exchange for Bitcoin, are a primary method of founding a new cryptocurrency.

Some cryptocurrencies that began as ICOs and thus, would have been classified as securities, have instead become decentralized and no longer fall under the SEC’s jurisdiction. I argue that the SEC's inconsistency and lack of clarity on whether cryptocurrencies should be designated as securities warrants legislative change.

Given that many of today's biggest cryptocurrencies began as ICOs, the question of whether cryptocurrencies should be considered securities has broader implications beyond the legal debate. Specifically, a decision on this front would affect who could trade in the crypto market, which entities can hold the different cryptocurrencies, and what types of regulation requirements crypto issuers would need to meet. There is also evidence showing a correlation between uncertainty in regulations and volatility in the crypto market.3 One potential solution to this pressing issue came in December 2018 with the introduction of the bipartisan Token Taxonomy Act legislation that offers a definition of a “digital token” and would clarify that security laws no longer apply to cryptocurrencies once they satisfy the definition of a digital token. This article urges Congress to adopt the Token Taxonomy Act as it addresses the current gaps in crypto regulation and would offer more clarity in future SEC

3

Diego Zuluaga, Should Cryptocurrencies Be Regulated like Securities?, CATO INSTITUTE (June 25, 2018), https://www.cato.org/publications/cmfa-briefing-paper/should-cryptocurrencies-beregulated-securities.

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UCLA UNDERGRADUATE LAW JOURNAL decisions. More specifically, the act offers a comprehensive solution to governing cryptocurrencies by establishing a detailed set of criteria that would indicate which digital currencies should be considered securities and further, how they should be regulated. The bill offers increased regulatory clarity for investors, and thus would limit market volatility in response to regulatory uncertainty.

In this article, I will (I) elaborate on the criteria used to define securities as established by the United States Supreme Court in Securities and Exchange Commission v. W. J. Howey Co., (II) argue the difficulty of applying such a definition to cryptocurrencies, (III) maintain that legal complications prove the need for legislative change, (IV) contend that the inconsistency of the SEC’s statements regarding cryptocurrencies is due, in part, to their difficulty in applying the legal definition of a security to the crypto market, (V) and finally, the article will conclude with a careful examination of the Token Taxonomy Act—the piece of legislation offering a new regulatory framework for cryptocurrencies—and will argue in favor of its adoption.

I. Defining a Security: Securities and Exchange Commission v.

W. J. Howey Co. In order to understand the importance of security regulations for the crypto market, it is necessary to examine the current laws that define a security. The leading definition of what constitutes a security was articulated in the Supreme Court decision of SEC v. Howey in the form of the Howey test: a set of qualifications that determines whether an investment qualifies as a security, and therefore determine the legality of the SEC’s regulatory jurisdiction. The Howey Test reads that a security is “a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”4 Such a definition indicates that four criteria must be satisfied in order for the SEC to impose its regulations on a cryptocurrency. First, shareholders must all invest in a common

4

Securities and Exchange Commission v. W. J. Howey Co. et al., 328 U.S., 293, 298-299 (1946).

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES enterprise. Second, such an enterprise must be an investment of money. Third, those who purchase shares expect to make a profit and finally, the efforts of the third party are solely responsible for the profit.

The Supreme Court’s decision to offer a set of criteria to describe a security demonstrates their greater concern with elaborating upon how a security is meant to act, rather than strictly defining what would be considered a security.

For example, their categorization of a stock as a security is attributed to the expectation of profits solely from the efforts of a third party.

II. Issues with Applying the Howey Test to Cryptocurrencies and ICOs This section will apply the Howey Test to cryptocurrencies in order to identify areas where the Howey Test criteria are inadequate and overly broad, in order to demonstrate that security laws need to incorporate specific cryptocurrency definitions. When addressing the issue of regulating Initial Coin Offerings (ICOs) and cryptocurrencies, Stephanie Avakian, the co-director of the SEC’s Enforcement Division, stated, “The innovative technology behind these virtual transactions does not exempt securities offerings and trading platforms from the regulatory framework designed to protect investors and the integrity of the markets.”5 This approach warrants that the SEC must apply the Howey Test to cryptocurrencies and ICOs on a case-by-case basis in order to determine whether the SEC’s authority applies. Given that cryptocurrencies are typically an investment of money, it is necessary to ask three questions about the ICO, or cryptocurrency, to determine whether it satisfies the Howey Test and qualifies as a security. The first question is whether people are investing in a common enterprise; for cryptocurrencies, the answer to this can vary based on the extent to which a currency is decentralized. Still, an ICO almost always satisfies this Howey Test condition, due to the promoted fundraising used to 5

Shawn Langlois, What is an ICO?, MARKETWATCH (Oct. 12, 2017, 5:52 AM), https://www.marketwatch.com/story/what-are-icos-and-why-is-the-sec-taking-steps-toprotect-investors-from-them-2017-07-27.

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UCLA UNDERGRADUATE LAW JOURNAL develop a coin. Next, we must examine whether buying cryptocurrencies carries the reasonable expectation of producing a profit, and finally, if the profit is the result of a third party’s labor. The latter questions are where the complications begin to arise as the Howey test requires that all the criteria must be definitively met in order for the ICO to be considered a security, yet there is much ambiguity in answering these questions with regards to cryptocurrencies.

A. The First Complication: Determining the Expectation of Profit Determining whether the expectation of profit is valid in the scope of a cryptocurrency investment is a complex issue. Based on the Howey Test, there must be sufficient evidence to indicate that investors expect a profit for a cryptocurrency to qualify as a security. In determining the expectation of profit in SEC v. Howey, the Supreme Court cited the fact that the defendants were “offering an opportunity to contribute money and to share in the profits of a large citrus fruit enterprise managed and partly owned by respondents” and “offering this opportunity to persons who reside in distant localities and who lack the equipment.”6 When applying such rationale to cryptocurrencies, the SEC’s current specifications are insufficient and unclear. To resolve the ambiguity around the SEC’s role in the crypto market, the SEC framework must specify that the cryptocurrency in question must have a third-party framework behind it, promoting an expectation of profits.

Another way to satisfy the “expectation of profits” requirement is if there is a system that pays out some sort of dividend or payment within the currency.

Coins such as the TenX PAY tokens utilize such a system, in which the company behind the coin decided to pay out 0.5% of all aggregate transaction volume to PAY holders on a monthly basis.7 Without a similar system in place or the lack of a third party promoting an expectation of profit, it is highly improbable for a court to rule that investors look to a cryptocurrency as a source of profit.

6

Howey, 328 U.S. at 299.

Steven Buchko, What Is TenX (PAY)? | An All-Inclusive Guide to the Crypto Card, COINCENTRAL (Dec. 4, 2018), https://coincentral.com/tenx-beginner-guide/.

7

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES However, ICOs provide a much clearer solution to the criterion as many ICOs are established by marketing themselves as financially sound investments in order to appeal to potential investors. Therefore, the SEC’s framework also must acknowledge that coins that are yet to be launched into a decentralized network should be considered securities.

B. A Second Complication Posed by the Howey Test: The Extent of Third-Party Involvement Next, the extent of a third party’s involvement in regard to generating a profit requires careful scrutiny of the actions of all engaged in the business dealings. Consequently, this qualification produces a much more perplexing set of results when applied to cryptocurrencies and can often lead to more questions than answers. The SEC must offer a novel framework to address this issue by refining the current standards of the Howey Test, as its universal application to potential securities only leads to seemingly arbitrary answers. Although cryptocurrencies are meant to be decentralized, and there should, in theory, be no “third party,” the SEC has argued that many cryptocurrencies are still not decentralized enough to fulfill this criterion. Despite such a strict assertion, the SEC has failed to identify a clear set of standards that can be used to determine which coins are considered to be sufficiently decentralized.

Furthermore, ICOs clearly possess a third party which seeks to promote the coin, and therefore the new framework would need to address the degree of decentralization exclusively for cryptocurrencies already on the market. This criterion, however, creates further complications when one considers the fact that many of today’s unregulated cryptocurrencies initially emerged as ICOs, meaning that they began with a leadership promoting and creating the coin and then transformed into a decentralized currency. Therefore, it is vital to develop a definition for a “digital token” to distinguish when, relative to its development, a cryptocurrency becomes a decentralized network. As a result, it is critical that we examine the SEC’s statements and cases where it determined that an ICO should be considered a security (Section IV), and further analyze instances

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UCLA UNDERGRADUATE LAW JOURNAL where a coin that initially began as an ICO ultimately became a decentralized cryptocurrency (Section III). Such background and precedent will demonstrate the inadequacy of the SEC’s current approach and provide a baseline for the framework proposed in the Token Taxonomy Act, which will be analyzed in Section V. C. A Third Issue: Determining the Extent of Decentralization Finally, the concept of decentralization as it relates to cryptocurrencies in the context of the Howey Test leads to a broad and arbitrary approach in evaluating the lack of third-party involvement. Decentralization has been the primary grounds for the SEC to consider cryptocurrencies as non-securities, as decentralized currencies do not meet the third-party requirement of the Howey Test. In regards to the development of ICO’s, William Hinman, the director of the SEC’s Division of Corporate Finance, stated: “Over time, there may be other sufficiently decentralized networks and systems where regulating the tokens or coins that function on them as securities may not be required.”8 Although his claim may seem promising to cryptocurrency founders and shareholders, the lack of clarification in “sufficiently decentralized” gives rise to uncertainty and doubt among those holding cryptocurrencies. How the SEC may choose to deem something “sufficiently decentralized” is vague, subjective, and problematic because it will likely result in conflicting opinions as a result of a lack of clear guidelines: what one company may deem to be decentralized enough may potentially be different from the SEC’s determination, as this is a difficult concept to quantify. A detailed criterion would offer investors a clearer idea of what is and is not a “sufficiently decentralized” network according to the SEC. The only benchmark of decentralization that has been publicly touted by the SEC is the consideration of Bitcoin and Etherium to be decentralized networks.

8

William Hinman, Digital Asset Transactions: When Howey Met Gary (Plastic) U.S. Securities and Exchange Commission, U.S. SECURITIES AND EXCHANGE COMMISSION (June 14, 2018), https://www.sec.gov/news/speech/speech-hinman-061418.

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES Given that these statements are the only clear SEC opinions on this issue that can be referenced, the only way of predicting whether a currency will be considered sufficiently decentralized is by comparing it to the few cryptocurrencies the SEC has already approved. Such a limited scope is not nearly comprehensive enough to apply to all other cryptocurrencies as a universal standard; their decision to deem the two largest cryptocurrencies on the market as “sufficiently decentralized” does not provide meaningful insight as to what steps cryptocurrencies should take in order to follow their example.

The lack of criteria on this issue inevitably results in legal ambiguity and regulatory concerns, therefore demonstrating one of the many issues with applying existing security laws to cryptocurrencies and the necessity of a clear set of criteria that includes an evaluation of the extent of decentralization a cryptocurrency must meet in regard to the Howey Test.

III. Legal Complications with the Broad Howey Test Criteria as Evident in Coffey v. Ripple Labs, Inc. This section will examine a specific case which highlights the many problems with applying the broad Howey Test criteria to cryptocurrencies. XRP and Etherium are among the most popular and largest cryptocurrencies on the market in terms of market capitalization. A commonality between both coins is their original offers as ICOs, and similar transformations into decentralized currencies. Uncertainty over how the SEC will approach cryptocurrency regulation has forced many companies who have a financial interest in the coins to argue that they should not be considered securities under U.S. law in order to avoid the additional steps necessary for their cryptocurrency to be legally traded as a security. The SEC confirmed that Bitcoin and Etherium are not securities in 2018, with the Director of the SEC’s Division of Corporate Finance, William Hinman, acknowledging that they are operating on a “highly decentralized

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UCLA UNDERGRADUATE LAW JOURNAL network, not the type of centralized actor that characterizes securities offerings.”9 However, Bitcoin and Etherium’s status as non-securities still does not provide answers for the many other cryptocurrencies on the market. For example, the security status of cryptocurrency XRP, founded by Ripple Labs, Inc., is less clear. In May of 2018, current and previous XRP holders sued Ripple claiming that XRP is, in fact, a security.10 In section F of the class-action lawsuit, the plaintiffs argue that “XRP Purchasers Made an Investment of Money in a Common Enterprise, XRP Investors Had a Reasonable Expectation of Profits, and that the Success of XRP Requires the Efforts of Ripple Labs and Others.”11 In attempting to prove that XRP is a security, the lawsuit also cites the fact that Ripple publicly praises XRP’s price performance and that “Ripple Labs also directly controls the inflation rate of XRP, going so far as to lock more than half the supply of XRP in escrow to provide ‘supply predictability and trusted, healthy XRP markets.’ This announcement had its intended effect, driving the price of XRP rapidly upwards.”12 The security status of this token rests on the plaintiff being able to prove that the success of XRP is based on the actions of Ripple. The lawsuit concludes with the argument that XRP satisfies all the Howey Test criteria; however, the fact that there are no set criteria for what constitutes as a decentralized network makes this case difficult to rule on.13 To contest the plaintiff’s primary arguments, Ripple’s defense highlights the issue with using the Howey Test’s broad specifications. Ripple argues that XRP “exists independently of Ripple the company. If Ripple, the company shut down tomorrow, XRP will continue to exist.”14 The defendant’s counterargument highlights the necessity for clearly defined criteria that would determine which types of cryptocurrencies satisfy the security test. In the case 9

Sarah Wurfel, Here is how Ripple avoids classification of XRP as a security. But what would happen it was declared as one?, CAPTAINALTCOIN.COM (Dec. 2, 2018), https://captainaltcoin.com/hereis-why-ripple-xrp-is-not-security-but-what-would-happen-it-was-declared-as-one/.

10 Id. 11 Coffey v Ripple Labs, Inc. No. CGC-18-566271 (Cal. filed May 3, 2018).

12 Id. at 21.

13 Id. at 22.

14 Id. at 23.

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES of XRP, the fact that XRP holders have no stake in the Ripple company, coupled with XRP being bought and sold on an everyday basis on many different platforms independent of Ripple, seems to confirm the arguments made by Ripple about its total separation from XRP: even if Ripple, as a company, disappeared, XRP would continue to be traded. Despite such compelling evidence distinguishing XRP from the definition of a security, the broad criteria used in the Howey Test still gives the plaintiffs grounds to sue Ripple.

Previously, Hinman stated that a network on which a token or coin trades only becomes sufficiently decentralized if “purchasers would no longer reasonably expect a person or group to carry out essential managerial or entrepreneurial efforts.”15 Given that XRP can operate independent of Ripple, it is reasonable to conclude that Ripple is not performing “essential” efforts. Despite this clarification, the lack of criteria makes it difficult to argue for or against what “essential managerial” efforts specifically entail. This case is just one example of the broader issues that all cryptocurrencies are facing in the absence of clear SEC specifications. The standards offered in the “Token Taxonomy Act” would address these issues, and exclude digital coins from the conventional definition of a security, as argued in Section V. IV. The Inconsistency of the SEC’s Statements on Cryptocurrencies This section will examine the SEC’s statements on cryptocurrencies and highlight areas where the SEC has failed to offer clear regulatory standards, and will argue that this is due, in part, to the nonspecific Howey Test criteria. Due to the intrigue surrounding the status of cryptocurrencies in the American economy, in addition to the high levels of media attention given to the cryptocurrency market, the SEC’s ranking members have become vocal about their opinions and interpretations of how they wish to approach cryptocurrency regulations in the near future. The most informative statements were made by

15

Hinman, supra note 3.

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UCLA UNDERGRADUATE LAW JOURNAL the Chairman of the SEC, Jay Clayton, in an interview in early June 2018, where he stated, “Cryptocurrencies: These are replacements for sovereign currencies, replace the dollar, the euro, the yen with Bitcoin, that type of currency is not a security.”16 In this announcement, Clayton provides a foundation for future regulatory framework, clarifying that cryptocurrencies that act like Bitcoin should not be considered securities, consistent with the failure of many cryptocurrencies to be considered securities under the outdated Howey Test as outlined in Section II. Consequently, Clayton must be answering unfavorably to at least one of the two following Howey Test questions for Bitcoin: are those buying cryptocurrencies expecting to profit, is this profit solely made possible through the efforts of a third party, or both? Since the SEC has not clearly applied the Howey Test to crypto, there is only speculation as to the grounds on which it fails to pass the test. Given Bitcoin’s highly decentralized network, meaning that there is no third party, Clayton is likely answering negatively to both of these questions. The SEC has, however, been clearer in specifying how it would apply the Howey Test to ICOs. When addressing ICOs, SEC Chairman Clayton stated, A digital asset where I give you my money and you go off and start a venture, and in return for giving you my money you say you know what, I’m going to give you a return, or you can get a return on the secondary market by selling your token to somebody – that is a security, and we regulate that.17

In contrast to his opinion on the security status of cryptocurrencies, in this instance, Clayton answers positively to each of the Howey Test qualifications for ICOs. He identifies the fact that ICOs generally possess a type of leadership, and also argues that the transaction involved when dealing with an ICO is for the investor to make a profit. Although a third-party presence is fairly evident in ICOs, cryptocurrencies generally are decentralized, and thus Clayton acknowledges that decentralized cryptocurrencies cannot be considered securities under U.S. law. While this issue may seem as if it has been resolved

16

Conor Maloney, SEC Not Changing Securities Rules to Accommodate ICOs [But Bitcoin’s Fine]: Chairman Clayton, CCN (June 7, 2018), https://www.ccn.com/sec-not-changing-securitiesrules-to-accommodate-icos-but-bitcoins-fine-chairman-clayton.

17 Id.

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES by the precedent in SEC v Howey, certain SEC statements and decisions prove this simple distinction between cryptocurrencies and ICOs is not comprehensive enough to incorporate the range of complications in the digital currency market. Specifically, the SEC has not publicly clarified whether all cryptocurrencies are not securities, other than making specific statements about Bitcoin and Etherium. In fact, it is extremely likely that the SEC’s rare regulatory decision-making concerning cryptocurrencies is attributed to their difficult time applying the Howey Test to many cryptocurrencies.

In the same statement, Clayton does address the complication with the many decentralized cryptocurrencies trading today that started as ICOs with leadership, which would satisfy the third-party requirement. His answer to this issue was simply, “That’s a question that is out there and will be answered under specific facts and circumstances.”18 Such vagueness leads to speculation that the coins that went through this process are actually traded illegally because they were never registered as securities and are not meeting the SEC’s security regulatory requirements. Gary Gensler, a former president of the Commodity Futures Trading Commission (CFTC), has argued that under federal law, many of these ICO-turned-decentralized currencies are traded illegally.19 When discussing the case of XRP and Etherium, Gensler argues that since both these coins were sold by some form of leadership, and were also purchased for a return on their investments, they should be considered securities.20 Gensler essentially claims that since a previous version of these coins is considered a security based on the Howey Test, the SEC should consider them to be traded illegally, even though they would not be considered securities under the Howey Test today. In essence, he applies the criteria to a previous version of the coin and fails to recognize its current non-security status based on the test. Such conflicting

18

Id. Josiah Wilmoth, Ethereum (ETH) and Ripple(XRP) are 'Noncompliant Securities,': Fmr. CFTC Chairman, CCN (Apr. 23, 2018), https://www.ccn.com/ethereumeth-and-ripplexrp-arenoncompliant-securities-says-fmr-cftc-chairman/.

20 This comment was made before the SEC clarified that Etherium is not a security in its current state.

19

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UCLA UNDERGRADUATE LAW JOURNAL public statements have created further confusion about the status of cryptocurrencies as securities. In order to avoid volatility in the crypto market, in addition to the apprehension of illegally trading coins, it is imperative that the current standard be updated and there be a new set of qualifications unique to digital currency.

V. A Solution to the Lack of SEC Clarity: The Token Taxonomy Act Because the Howey Test was created long before the digital revolution, it does not contain the necessary criteria to classify various cryptocurrencies as securities. The Token Taxonomy Act resolves this issue by amending the Securities Exchange Act of 1933, adding a unique definition for a “digital token,” and stipulating that digital tokens should be excluded from the current definition of a security under the Howey Test. The bipartisan bill was introduced into the House of Representatives by U.S. representatives Warren Davidson and Darren Soto and is meant to address the shortcomings of the application of the Howey Test to today’s cryptocurrencies.21 The bill utilizes four criteria to define a digital token: the creation, the transaction system, the transaction method, and finally, the characterization.

A. Specifying the Creation of a Digital Token The first criterion outlines different ways the token can be created to be considered a digital token. It initially states that the cryptocurrency must be “in response to the verification or collection of proposed transactions.”22 In layman’s terms, the statement essentially translates to saying that the token must be mined. Mining is a process associated with cryptocurrencies, where computers solve computational problems in order to add new transactions to the

21

Kate Rooney, Lawmakers look to change SEC's 72-year-old securities definition to exclude cryptocurrencies, CNBC (Dec. 20, 2018, 1:31 PM), https://www.cnbc.com/2018/12/20/lawmakers-look-to-change-secs-72-year-old-securitiesdefinition-to-exclude-cryptocurrencies.html.

22 Token Taxonomy Act, H.R. 7356, 115th Cong. (2018).

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES ledger. Additionally, within this qualification, the token must be “pursuant to rules for the digital unit’s creation and supply that cannot be altered by a single person or group of persons under common control.”23 The clause explicitly defines true decentralization by requiring that the company behind the token to no longer have control over the token’s supply. The final stipulation in this section states “as an initial allocation of digital units that will otherwise be created in accordance with clause (i) or (ii).”24 This clause addresses part of the issue outlined in Section II about determining the extent of decentralization by setting a baseline for how a decentralized currency should function. It further addresses the question of the security status of XRP and Etherium, where they began as initial allocations in ICOs, but are currently in agreement with the other two clauses.

B. The Transaction System The second criterion simply addresses the ledger and states that there must be a mathematically created ledger that cannot be changed or updated after it is created. Bitcoin, the most popular cryptocurrency, has a ledger where transactions can never be erased or updated after they have gone through the transaction. Such a mechanism ultimately ensures cybersecurity, prevents the possibility of hacks, and improves the security definition by creating another baseline for total decentralization.

C. The Method of Transaction The third criterion is extremely important for the matter of decentralization, as it states that the token must be “capable of being traded or transferred between persons without an intermediate custodian.”25 The statement echoes a defense argument made by Ripple in Coffey v. Ripple Labs,

23

H.R. 7356.

H.R. 7356.

25 H.R. 7356.

24

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UCLA UNDERGRADUATE LAW JOURNAL Inc, as the corporation affirmed its lack of control over XRP by explaining that XRP is bought and sold on many different platforms independent of Ripple.

Because the Howey Test does not clearly define such qualifications, mere interpretation based on the Howey Test standards alone does not necessarily result in definitive measures of decentralization. In contrast, the Token Taxonomy Act provides an important clarification to the extent of what “sufficiently decentralized” truly embodies. This new bill’s specificity in determining a scale of decentralization creates a clear example for future cryptocurrencies to follow, and thus would avoid the issues outlined in Section II and the ambiguity found in cases like Coffey.

D. Characterization The bill’s final criterion describes the scope of involvement holders are legally bound to in regard to the token, by stating that the token must not be “a representation of a financial interest in a company, including an ownership or debt interest or revenue share.”26 As discussed in Section II, this specification will address cases such as that of TenX by creating a standard that addresses payment systems which mimic dividends paid out through stocks. Although the application of the Howey Test would have also classified TenX as a security, the characterization stipulation in the Token Taxonomy Act clearly defines how the implication of a financial interest can ultimately determine the instances in which a cryptocurrency would be considered a security. Evidently, the Token Taxonomy Act has created a comprehensive set of criteria that maintains a similar definition to the Howey Test regarding third-party involvement and decentralization, while adding criteria specific to cryptocurrencies, thereby leaving little room for potentially ambiguous or subjective interpretations that have plagued the crypto market with uncertainty thus far.

26

H.R. 7356.

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SEC REGULATORY AMBIGUITY: WHY CONGRESS SHOULD PASS NEW LEGISLATION REGULATING CRYPTOCURRENCIES Conclusion The uncertainty in applying the legal precedent for determining security status—the Howey Test—to today’s cryptocurrency market has led to an extremely complex decision-making process for the SEC, and has inevitably plagued the entire cryptocurrency market with regulatory apprehension. Such inconsistency is evident in the many legal concerns that arise when dealing with a broad regulatory framework. In order to resolve these issues, I urge Congress to adopt legislation that clarifies the complication with the three qualifications of the Howey Test: determining the expectation of profit, the extent of third party involvement, and the degree of decentralization. Given the association between regulatory uncertainty with volatility within the cryptocurrency market, such unpredictability negatively affects both the utility of using cryptocurrencies, and jeopardizes the financial well-being of those using them.27 The introduction of the Token Taxonomy Act holds the promise of benefitting the future of cryptocurrency by preserving the fundamental aspects of the Howey Test and applying them properly to digital currencies. The act would provide significant and essential clarity, not only for investors to make more informed decisions on which cryptocurrencies to purchase, but also for the SEC to constitutionally carry out its duties.

27

Zuluaga, supra note 4.

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UCLA UNDERGRADUATE LAW JOURNAL Suzan Bedikian*

The Legality of the Systematic Disenfranchisement of Voters in the United States ABSTRACT. Although voting rights are thought to be the cornerstone of American democracy, recent elections have raised concerns about the disenfranchisement of voters, primarily on the basis of race, economic status, and age. Controversial electoral practices have taken the shape of new voter ID restrictions, voter purges, polling place closures and relocations, and felon disenfranchisement laws. The rise of these practices is in large part a consequence of the Supreme Court’s decision in Shelby County v. Holder; this landmark decision repealed key sections of the Voting Rights Act of 1965 which had previously granted the federal government regulatory power over state electoral practices, even though that power had traditionally been reserved for states under the Constitution. Even those practices which have not directly stemmed from decreased federal regulation—such as felon disenfranchisement— are of dubious legality due to their discriminatory nature, which contravenes the Constitution and remaining sections of the Voting Rights Act of 1965.

Fortunately, solutions to the disenfranchisement of voters in the United States exist, primarily through the repealing of onerous voting restrictions and the implementation of new sweeping federal regulations. *Suzan Bedikian is a third-year Political Science and History major. She is a committee member of the United Nations Association at UCLA, and volunteers with JusticeCorps to provide legal services to underserved communities at the Los Angeles Superior Courts. Suzan has a profound interest in law and plans to attend law school after graduating from UCLA.

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES Introduction By the very nature of democracy, voting rights are fundamental to the proper functioning of the United States. Even though all citizens above the age of eighteen have legally had suffrage since the mid-20th century, unfair electoral practices and voting laws have disenfranchised groups of voters based on race, economic status, and age throughout the history of the United States. While the Constitution prescribes the jurisdiction of electoral practices to the states, other sections of the Constitution grant the federal government authority to impose sweeping regulations which have been crucial to protecting voting rights. When these regulations were rolled back, unfair electoral practices ran rampant throughout the states, especially in the South—a trend witnessed during the Reconstruction and Jim Crow eras.

The recurrence of voter suppression can be witnessed today, as Sections 4(b) and 5 of the Voting Rights Act of 1965, which granted the federal government power to require state and local legislatures with histories of unfair electoral practices to seek preclearance for new electoral legislation, were declared unconstitutional by the Supreme Court in Shelby County v. Holder. In this article, I examine how this decision has precipitated a rise in new and unfair electoral practices such as strict voter ID laws, voter purges, polling place closures and relocations, and felon disenfranchisement laws. Additionally, this article will dissect the aforementioned practices and question their legality. Part I examines the historical pattern of increased voter disenfranchisement as a consequence of decreased federal regulation. Part II discusses the legal precedent for current voting rights, and Part III explicates the country’s return to voter suppression as a result of newly decreased federal regulations brought about by the Supreme Court’s decision in Shelby County v. Holder. Part IV analyzes current contentious electoral practices and delineates their effects on voter populations, questioning their legality in concurrence with key Constitutional Amendments and federal statutes. After illustrating the different methods of disenfranchisement in the United States in previous sections, Part

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UCLA UNDERGRADUATE LAW JOURNAL V examines the implications of these controversial practices and recommends potential solutions.

I. The Historical Trend of Voter Disenfranchisement Resulting From Decreased Federal Regulation The federalist design of the U.S. government has led to ambiguity concerning who has jurisdiction over electoral practices. According to Article I Section IV of the Constitution, this power is primarily left to the discretion of the states; however, the Supremacy Clause in Article IV of the Constitution delineates the supremacy of federal law over state legislatures, thus implying that federal legislation regarding electoral practices supersedes state legislation.1 This trend of ambiguity and conflict between federal and state governments has foreshadowed the current climate of controversy surrounding numerous electoral practices. In order to better understand the current state of voting rights, it is imperative to analyze the history of suffrage and identify patterns which resulted in increased disenfranchisement. Therefore, the subsequent sections will dissect the ways in which disenfranchisement was first legally implemented in order to provide context for how disenfranchisement is carried out in the United States today.

A. The Reconstruction Era The end of the Civil War in 1865 brought about the abolition of slavery, and thus gave rise to the inclusion of a new and large group of voters whose rights needed to be established. The 14th Amendment was ratified in 1868, granting full citizenship rights, including voting rights, to all men born or naturalized in the United States.2 However, concerns about the implementation of fair electoral practices prompted the ratification of the 15th Amendment in 1870, which was created to enforce the 14th Amendment and protect voting rights.3 1

United States of America 1789 (rev. 1992), Constitution, (last visited Mar. 7, 2019) https://www.constituteproject.org/constitution/United_States_of_America_1992.

2 Id. 3 Id.

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES The 15th Amendment has two key components which are crucial in understanding the constitutionality of subsequent electoral statues. Firstly, the amendment states that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous servitude,” codifying the concept that voting laws should be free of any such discrimination.4 The second clause is significant in the battle between state and federal jurisdiction, as it states, “[t]he Congress shall have power to enforce this article by appropriate legislation.”5 This explicitly grants Congress the right to make laws relating to election practices in order to protect voting rights, despite the fact that this area of law was traditionally beyond its scope of power. This, coupled with the Supremacy Clause of Article IV, gave the federal government preeminence over state governments in voting rights legislation.

B. The Jim Crow Era By the end of 1877, federal troops were pulled out of the South and, without the watchful eye of the federal government, the states exposed and took advantage of loopholes in the Reconstruction Era Amendments. This ushered in the Jim Crow Era, which is epitomized by the regression of voting rights and rampant voter suppression. It is significant to note that although these laws made no mention of race, economic status, or age, the nature of their implementation intended to disenfranchise voters based on these classifications, a precedent which has been replicated in the electoral laws of today.

One mechanism of disenfranchisement in the Jim Crow Era was poll taxes, which were first introduced in the late 1800s and persisted well into the 20th century. These taxes were instituted by state and local legislatures with the intention of excluding and deterring people of lower socioeconomic status from voting, and took the form of required fees that voters had to pay in order to cast a ballot. Since this practice made no outright mention of discrimination, it was 4 5

Id. Id.

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UCLA UNDERGRADUATE LAW JOURNAL considered legal despite the widespread, de facto disenfranchisement it caused.

These practices remained in place until the 24th Amendment was proposed by the federal government and ratified by the states in 1964, which banned poll taxes in all federal elections.

Another practice that contributed to the disenfranchisement of voters during this time was literacy tests. These tests required people to read and write any given section of a state’s constitution in order to register to vote. Thus, people who had not received a formal education or were illiterate were unable to vote. Although this disenfranchised all people in lower economic classes, literacy tests disproportionately disenfranchised African American voters, whose illiteracy rates were significantly higher than the national average. 6 Despite its discriminatory nature, this practice remained in place until Civil Rights Era statutes eliminated it.

While literacy tests and poll taxes primarily targeted former slaves, states soon ran into an unintended consequence—uneducated and poor white people experienced disenfranchisement as well. To circumvent this problem, states introduced Grandfather Clauses in 1898, which stated that men whose grandfathers had been able to vote prior to 1866 or 1867 would be exempt from educational, property, and tax requirements when voting.7 Since African Americans had not been granted suffrage until the ratification of the 14th Amendment in 1868, they were not eligible for these exemptions. This practice continued until 1915, when the Supreme Court deemed this practice unconstitutional and in violation of the 15th Amendment, as the nature of the clause inherently denied African Americans the right to vote on the basis of race.8 During the Jim Crow Era, other minorities were discriminated against as well. Women were not allowed to vote in most states until the 19th Amendment,

6

120 Years of American Education: A Statistical Portrait, National Assessment of Adult Literacy (1993), https://nces.ed.gov/naal/lit_history.asp.

7 The Grandfather Clause, Britannica (May 29, 2015), https://www.britannica.com/topic/grandfather-clause.

8 Guinn v. United States, 238 U.S. (367-88) (1915).

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES which granted women universal suffrage, was ratified in 1920.9 Further, Native Americans were not allowed to vote until Congress passed the Indian Citizenship Act in 1924 which granted Native Americans U.S. citizenship and, consequently, the right to vote.10 However, Native Americans were not nationally enfranchised until 1957, as suffrage for Native Americans was decided on a state-by-state basis.11 Additionally, youth over the age of eighteen were not allowed to vote, even though they were legally considered adults, until the 26th Amendment was ratified in the aftermath of the Civil Rights Movement in 1971.

Despite the gradual expansion of suffrage, voting rights were still curtailed through methods such as poll taxes, literacy tests, and Grandfather Clauses, indicating a need for the federal government to step in and regulate state and local practices.

II. The Expansion of Voting Rights Under the Voting Rights Act of 1965 The Civil Rights Movement of the 1960s saw a massive progression in the protection of people’s voting rights. Specifically, the Voting Rights Act of 1965 expanded the federal government’s regulatory power over states by supplementing the 15th Amendment, reiterating that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”12 While the act was significant in its entirety, Section 4(b) and Section 5 were instrumental in the execution and implementation of the act itself.

9

United States of America 1789 (rev. 1992), Constitution, (last visited Mar. 7, 2019). https://www.constituteproject.org/constitution/United_States_of_America_1992 10 Congress Granted Citizenship to all Native Americans Born in the US June 2, 1924, America’s Story (Last visited Mar. 7, 2019) http://www.americaslibrary.gov/jb/jazz/jb_jazz_citizens_1.html.

11 Id. 12 Voting Rights Act, 1965 (codified at 42 U.S.C.§§ 1975 to 1973aa-6).

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UCLA UNDERGRADUATE LAW JOURNAL Both Section 4(b) and Section 5 were the primary executive forces which ensured fair electoral practices. Specifically, Section 4(b) consisted of a two-part formula which determined the extent of voter suppression in each state and county. The first segment looked to see which state, or political subdivision of the state, still had a “test or device” restricting citizens’ opportunity to register and vote, such as the literacy tests in 1964.13 The second segment of the test looked at state censuses to determine whether less than 50% of eligible voters were registered to vote in the 1964 presidential election.14 If a state or county fit specific criteria under the formula in Section 4(b), it was then subject to the requirements outlined in Section 5 of the Voting Rights Act. This section required state and local legislatures that were identified as having a history of unfair voting practices to request preclearance on any new electoral practices they wished to implement. More specifically, these legislatures had to receive approval from either the U.S. Attorney General or the U.S. District Court of Washington, D.C. to confirm that any new proposed laws did not discriminate against minorities.15 This section significantly expanded the federal government's regulatory power over the electoral practices of states, preventing disenfranchisement at its root by blocking policies with potential biases from going into effect.

III. The Return to Voter Suppression under Shelby County v.

Holder

While the Civil Rights Era effectively eliminated numerous practices of voter suppression, as well as prevented the implementation of new unfair electoral practices, the turn of the 21st century saw increased pressure to repeal many provisions which had protected the voting rights of minorities and people of lower economic status. The biggest blow came in 2013, with the Supreme Court’s decision in Shelby County v. Holder. This case, brought by Shelby County, Alabama against Attorney General Eric Holder Jr., sought to question 13

Id. Id. 15 Id. 14

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES the constitutionality of the Voting Rights Act of 1965; specifically, the petitioners challenged the legality of Section 4(b) and Section 5. At the time the case was argued, nine states in their entirety, consisting of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, were subject to Section 5 regulations as a result of the formula in Section 4.16 Shelby County argued the sections were outdated, and that both sections overstepped Congress’s power to enforce the 14th and 15th Amendments as well as infringed on the rights of states to determine electoral processes, granted to them under Article IV of the Constitution.17 In a controversial 5-4 vote, the Supreme Court sided with Shelby County.

Chief Justice John G. Roberts delivered the majority opinion, in which he stated that Section 4 was unconstitutional because it placed a burden on states that the Court no longer deemed necessary, claiming that the conditions of voting rights had progressed since the 1960s and 1970s. Thus, he argued that the section was outdated because it did not reflect the changes made by state and local legislatures in the last fifty years which resulted in increased voter turnout.18 However, Supreme Court Justice Ruth Bader Ginsburg wrote a compelling dissenting opinion which was subsequently signed by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. In her dissent, Justice Ginsburg argued that the sections of the Voting Rights Act of 1965 did fall within the jurisdiction and power of Congress, and that precedent from previous cases reinforced the federal government’s power to address and curb potential state abuses of power.19 Further, she argued that evidence gathered by Congress, which was used to determine whether or not it would renew Section 4(b), demonstrated that there was still a substantial need which justified the burden placed on these states to seek preclearance. Specifically, she wrote that while “large progress has been made, Congress determined, based on a voluminous 16

Jurisdiction Previously Covered by Section 5, The United States Department of Justice (Aug. 6, 2015) https://www.justice.gov/crt/jurisdictions-previously-covered-section-5.

17 Shelby v. Holder, 570 U.S.__ (2013).

18 Id. 19 Shelby v. Holder, 570 U.S.__ (2013) (Ginsburg, R., dissenting).

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UCLA UNDERGRADUATE LAW JOURNAL record, that the scourge of discrimination was not yet extirpated.�20 Finally, she concluded that deeming Section 4 unconstitutional rendered Section 5 of the act nearly impossible to enforce.21 The dissent highlights the concerns about and possible ramifications of this Supreme Court decision. Ultimately, this decision has played a significant role in the regression of voting rights by reopening the door for the passage of new and unfair legislation and setting the tone for further deregulation.

IV. Contemporary Controversial Electoral Practices In recent years, state and local legislatures have implemented numerous controversial electoral practices which have disenfranchised thousands of voters across the United States. The Supreme Court’s decision in Shelby County v.

Holder has either directly or indirectly contributed to the emergence of these contentious practices. Similar to the methods employed during the Jim Crow Era, there is no clear or outright discrimination in the text of these statutes; yet, the subsequent implementation of new policies such as stricter voter ID laws, voter purges, polling site closures and relocations, and felon disenfranchisement laws primarily target people in racial minorities, lower-income brackets, and youth voters. The legality of these practices is currently being debated in numerous cases, as opponents to the laws claim they violate numerous Constitutional Amendments as well as other federal statutes.

A. Voter ID Laws As people’s lives have become increasingly entangled with technology, the fundamentals of electoral practices have changed to allow online voter registration. While this new technological advancement has provided wider access to voting, subsequent voter ID laws intended to prevent voter fraud have instead further disenfranchised citizens. Fearing voter fraud, the majority of states currently have laws requiring either a valid government or photo ID in

20 21

Id. Id.

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES order to vote. However, this practice becomes controversial when increasingly restrictive ID laws disproportionately prevent minority, poor, and youth populations from voting, especially by imposing financial burdens.

The legality of this practice has been frequently questioned since its implementation. In 2011, the Texas legislature signed the strictest voter ID registration in the United States at the time, which cut down the number of acceptable IDs to just seven types of unexpired photo IDs. As a result of the new legislation, experts estimated that around 600,000 eligible registered and unregistered voters would not meet the new requirements, effectively disenfranchising over half a million voters.22 Under the Voting Rights Act of 1965, and before the decision in Shelby County v. Holder, Texas had applied for preclearance for this exact legislation. The U.S. District Court for Washington, D.C. had denied its appeal under the claim that Texas was unable to prove the law would not disproportionately disenfranchise African American and Latinx voters.23 Following the Supreme Court’s decision in Shelby County v. Holder, the Texas legislature was granted further autonomy over electoral practices, and thus proceeded to pass the very law that the U.S. District Court for Washington, D.C. had previously deemed discriminatory. However, this law was in violation of the remaining sections of the Voting Rights Act of 1965 because people who cannot afford to purchase government IDs are disproportionately minorities. 24 The Texas NAACP questioned the legality of this practice and sued the state of Texas, resulting in numerous trials and appeals. After a lengthy judicial process, the law was eventually deemed discriminatory towards minorities, and Texas

22

Adam Liptak, Supreme Court Allows Texas to Use Strict Voter ID Law in Coming Election, The New York Times (Oct. 18, 2014).

23 Texas NAACP v. Steen (consolidated with Veasey v. Abott), Brennan Center for Justice (Sept. 21, 2018) https://www.brennancenter.org/legal-work/naacp-v-steen.

24 Matt Barreto, et al., The Disproportionate Impact of Voter-ID Requirements on the Electorate— New Evidence from Indiana, Matt A. Barreto (Jan. 2009). http://mattbarreto.com/papers/PS_VoterID.pdf.

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UCLA UNDERGRADUATE LAW JOURNAL was ordered to make requirements less strict.25 This discriminatory practice is an example of the direct consequences of decreased federal regulation as a result of Shelby County v. Holder. Even though the law is now less restrictive, voter ID laws in Texas remain one of the most restrictive in the nation today.

Similarly, Alabama has also implemented unfair voter ID laws in recent years. Like many other states, Alabama state laws require voters to present photo IDs in order to vote; however, the law allows for election officials to vouch for the identity of a voter who shows up to a polling location without an ID.26 This policy, which is reminiscent of literacy tests, puts voters' rights at the discretion of the officials which creates a system of subjective administration.

As a result of this rule, poll workers can decide when to uphold voter IDs or not, leaving room for discriminatory implementation. The legality of this law is currently being contested in Greater Birmingham Ministries v. Merrill, which is awaiting judgement in the Circuit of Appeals.27 Currently, states including Arkansas, North Dakota, Iowa, Wisconsin, and Missouri are involved in litigation regarding their voter ID laws, as of the 2018 midterm elections.28 Complainants in these cases argue that the harsh restrictions are discriminatory on the basis of age, economic status, and race.

Studies show that minorities, youth, and senior voters have less access to photo IDs. Further, these requirements create unnecessary economic burdens for voters who do not already have valid IDs, and low-income voters may not be able to afford these costs. In fact, studies show that almost 11% of eligible voters do not have government issued IDs.29 The justification of these strict requirements is also questionable, as there have been relatively few reports and

25

Texas NAACP v. Steen (consolidated with Veasey v. Abott), Brennan Center for Justice (Sept. 21, 2018) https://www.brennancenter.org/legal-work/naacp-v-steen.

26 Max Feldman, Peter Dunphy, The State of Voting Rights Litigation (December 2018), Brennan Center for Justice (Dec. 13, 2018).

27 Birmingham Ministries v. Merrill United States District Court, N. D. Alabama, Southern Division (January 10, 2018) 284 F. Supp. 3d 1253 (N.D. Ala. 2018).

28 Max Feldman, Peter Dunphy, The State of Voting Rights Litigation (December 2018), Brennan Center for Justice (Dec. 13, 2018).

29 Voter ID, Brennan Center for Justice (last visited Feb. 27, 2019) http://www.brennancenter.org/analysis/voter-id.

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES incidents of voter fraud throughout the country.30 Despite the growing controversy surrounding strict voter ID laws, this practice is becoming increasingly commonplace.

B. Voter Purges Another topic of contention in recent elections is the emergence of “voter purges.” In these purges, states often remove the names of people who passed away or were incarcerated from their voter rolls. However, the legality of this practice comes into question in circumstances such as in the state of Georgia, where the state legislature began to remove voters who had not voted in the previous election. After the 2013 Shelby County v. Holder decision, the number of people purged from voter rolls has drastically increased; namely, between 2012 and 2016, Georgia legislatures purged 1.5 million voters from its voter roll,31 and 500,000 voters were removed in 2017 alone.32 While some of these voters had passed away or were incarcerated, investigations showed that around 107,000 of the voters purged in 2017 had been removed simply because they had not voted in Georgia’s previous election.33 Even though people may forget or choose not to vote in some elections, this is not adequate justification to remove them from voter rolls. Further, voting becomes more burdensome, as those who are purged must re-register to vote.

This practice has been frequently litigated as well. In 2018, the Supreme Court heard Husted v. A. Philip Randolph Institute, a case which questioned the legality of Ohio’s voter purges. According to Ohio law, voter purges removed people who had not voted in two federal elections in a row and sent back postcards confirming their address on the state’s file.34 In this case, the Supreme 30

Lorraine C. Minnite, The Myth of Voter Fraud (2010).

Jonathan Brater, et al., Purges: A Growing Threat to the Right to Vote (2018).

32 Angela Caputo, et al., They Didn’t Vote...Now They Can’t, APMReports (Oct. 19, 2018) https://www.apmreports.org/story/2018/10/19/georgia-voter-purge.

33 Id. 34 Danielle Root, Voter Suppression During the 2018 Midterm Elections, Center for American Progress (Nov. 20, 2018) 31

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UCLA UNDERGRADUATE LAW JOURNAL Court ruled that the state of Ohio was within its rights to purge voters from its roll.35 However, these requirements by the Ohio legislature, and any legislatures with similar voter purging laws, are superfluous for the average person, who may not go through such lengths to remain on the voter roll.

Although the Supreme Court upheld the validity of this practice, it is often illegally implemented and continuously called into question in court. For example, investigations uncovered that the New York City Board of Elections illegally purged around 200,000 voters from its roll.36 While measures were passed to prevent this from happening again, similar issues arose in the 2018 New York state primary election, when many registered voters showed up to vote but found that their names were missing from the voter rolls at the polling places. Since most states do not allow for same-day registration, the individuals who were purged from the voter roll were blocked from casting a ballot.

The implementation of voter purges in this way is illegal because of federal regulations imposed in the National Voter Registration Act of 1993, a sweeping federal statute intended to improve people’s access to voter registration.

Specifically, provisions of the act declare that states must provide notice and allow for a waiting period before voters are purged from voter rolls. 37 New York’s legislature was in direct violation of this act, as well as Indiana’s state legislature, whose “Crosscheck Program” removed voters without notice or a waiting period.38 This practice is both a direct and indirect consequence of Shelby County v.

Holder. While the number of voter purges has drastically increased nationwide since the Supreme Court’s decision, the state and local jurisdictions which are https://www.americanprogress.org/issues/democracy/reports/2018/11/20/461296/votersuppression-2018-midterm-elections/.

35 Husted v. A. Philip Randolph Institute, 584 U.S.___ (2018).

36 A.G. Schneiderman Announces Major Settlement With NYC Board of Elections Over Voter Registration Purges, Letitia James N.Y. Attorney General (Nov. 1, 2017) https://ag.ny.gov/pressrelease/ag-schneiderman-announces-major-settlement-nyc-board-elections-over-voterregistration.

37 About the National Voter Registration Act, The United States Department of Justice (Aug. 8, 2015) https://www.justice.gov/crt/about-national-voter-registration-act.

38 Federal Court Blocks Indiana Voter Purge Crosscheck Law, ACLU (Jun. 8, 2018) https://www.aclu.org/news/federal-court-blocks-indiana-voter-purge-crosscheck-law.

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES no longer required to seek federal preclearance as they once did under Section 4(b) and Section 5 of the Voting Rights Act had purge rates that were remarkably higher than jurisdictions that were not required to seek preclearance prior to the case.39 While the concept of a voter purge is not discriminatory, the way the practice is applied discriminates against minority and low income communities, where large portions of voters are removed from voter rolls. If legislatures still had to seek pre-clearance from the federal government to implement voter purges, the number of voters removed from rolls would be less, and states not required to seek preclearance would be discouraged from using the practice as well.

C. Polling Site Closures and Relocations Polling place closures and relocations are another method by which voters are disenfranchised based on race, economic status, and age. By its very nature, the closure of polling locations makes voting more difficult for people because they have to travel to further districts to vote, which takes more time and may not be within reasonable means of public transportation. Thus, these closures have become an increasingly utilized tool in the disenfranchisement of voters; for example, the state of Georgia has closed down 214 polling locations across the state in recent years, majority of which were located in impoverished communities or areas where large groups of minorities lived.40 Similarly, during the 2018 midterm elections, officials in Kansas City moved the last remaining polling location in Dodge City, a historically Hispanic community, outside of city limits where access to public transportation was

39

Jonathan Brater, Et Al., Purges: A Growing Threat to the Right to Vote, The Brennan Center for Justice (Jul. 20, 2018). https://www.brennancenter.org/sites/default/files/publications/Purges_Growing_Threat_201 8.pdf.

40 Danielle Root, Voter Suppression During the 2018 Midterm Election, Center for American Progress (Nov. 20, 2018) https://www.americanprogress.org/issues/democracy/reports/2018/11/20/461296/votersuppression-2018-midterm-elections/.

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UCLA UNDERGRADUATE LAW JOURNAL limited; this was done only a month before the election, leaving people no time to contest the decision.41 Exacerbating the situation further, officials sent out mail informing newly registered voters that they could still vote at the old Dodge City polling place. This voter confusion compounded in the disenfranchisement of people who showed up to the polling place, only to find that it was closed, and were unable to vote anywhere else.

The relocation of polling sites also contributes to the disenfranchisement of voters. In Florida, a polling place was moved from Deer Beach into a private, gated community just before the 2018 elections.42 Since people who were not residents were not allowed access within the community, dozens of voters who were assigned that location were blocked from entering the gates by private community security guards for failing to present ID. The limiting of access to polling sites is a clear form of disenfranchisement, especially when the sites are relocated from low income or predominantly minority communities into rich or white ones.

Furthermore, the closures, movements, and general lack of accessible polling locations also disenfranchises youth voters. Predominantly, youth votes are suppressed through the lack of accessible polling places on or nearby college campuses and universities. At Texas State University, students asked county officials to extend early voting hours on their campus because the only polling place on campus, which was meant to service around 40,000 students, was only open for three days and during limited hours, which resulted in long lines. 43 County officials initially refused, leaving the next nearest polling place multiple bus rides away. However, after threats of legal action, county officials extended their hours and opened two more locations in the university’s nearby city.44 The limited access to polling locations, often caused by closures and movements, culminates in long lines, which are a form of disenfranchisement in and of themselves. When there are a limited number of polling locations, these 41

Id. Id. 43 Groups Threaten to sue Hays County Over On Campus Polling Location at Texas State University, Texas Civil Rights Project (Oct. 25, 2018) https://texascivilrightsproject.org/pressrelease-txst/.

44 Id. 42

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES sites often become overcrowded, as they must service more voters than initially intended. Thus, voters can end up waiting in line for hours before getting a chance to cast their ballot; waiting in long lines is a deterrent to many voters, who may not have the time or the availability to wait for hours on end. In the 2012 election alone, long lines deterred an estimated 730,000 people from voting.45 Similarly in 2016, it was estimated that roughly 3% of people waiting in line at polling places left before they could vote.46 Long lines disproportionately impact minorities, as minority communities are often where polling sites are closed down, leaving only a few locations to service thousands of people.

Further, this creates a system of de facto disenfranchisement of low-income voters, who often have inflexible employment, limited childcare hours, and restrictions on time off. Similarly, long lines and early closures deter students from voting, as they may be unable to vote in between classes, especially if the site has long lines or is multiple bus stops away.

The primary claim in defense of polling place closures and relocations is that the locations in question do not receive enough traffic to warrant remaining open. Thus, proponents argue that this practice is predominantly born from economic necessity rather than as a tactic of voter suppression. However, the closure and relocation of sites predominantly in low-income, minority, or youth communities points towards discriminatory tendencies. This disenfranchisement is exacerbated since reasonable alternatives are not offered to voters in light of closures and relocations without threat of litigation. Further, this practice is a consequence of the decision in Shelby County v. Holder because the number of closures has increased significantly in aftermath of the decision, and legislatures no longer need to seek preclearance to implement laws regarding the movement and closure of polling places.

45

Charles Stewart & Stephen Ansolabehere, Waiting In Line to Vote, U.S. Election Assistance Commission (Feb. 24, 2017) https://www.eac.gov/documents/2017/02/24/waiting-in-line-tovote-white-paper-stewart-ansolabehere/.

46 Id.

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UCLA UNDERGRADUATE LAW JOURNAL D. Felon Disenfranchisement Laws As a result of the “War on Drugs” and “tough on crime” policies, incarceration rates have risen dramatically in the United States in the last halfcentury. In the 1980s, a plethora of drug related misdemeanors were elevated to felonies, and people were increasingly incarcerated for nonviolent crimes.

Public officials claim these policies were implemented to decrease drug use and drug-related crimes across America. However, this increased incarceration disproportionately affected minority populations, and continues to do so today.

According to the Prison Policy Initiative, men in the United States have an 11% chance of incarceration throughout their lifetime, a number that spikes to 17% for Hispanic men and 32% for African American men.47 Furthermore, various studies show that individuals in lower income brackets have an increased chance of incarceration compared to individuals in higher income brackets.48 These statistics highlight a systematic bias in the nature of arrests and sentencing which, in turn, results in the disenfranchisement of individuals who have been incarcerated through income and racially motivated policy initiatives.

In the realm of felon rights, there are five main stratifications of suffrage.

Some states choose not to enact any voting restrictions on felons while others may restrict felons from voting only while in prison. Other state legislation prevents felons from voting during both prison and parole, while the next category of states restrict felons during prison, parole, and probation. The final and most extreme category of states prevent felons from voting during all stages of the incarceration process, and rolls these restrictions over into postsentencing, thus restricting people who have been convicted of felonies from voting for the rest of their lives. As of 2016, it was estimated that 6.1 million people had been disenfranchised from voting as a result of felony convictions.49

47

Peter Wagner and Wendy Sawyer, States of Incarceration: The Global Context 2018, Prison Policy Initiative (Jun. 2018) https://www.prisonpolicy.org/global/2018.html.

48Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned, Prison Policy Initiative (Jul. 9, 2015) https://www.prisonpolicy.org/reports/income.html.

49 Christopher Uggen, et al., 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, The Sentencing Project (Oct. 6, 2016)

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES This practice is widespread, as only Maryland and Vermont have no restrictions on felon voting—the rest of the states fall somewhere along the spectrum of restrictions.50 While this in itself is cause for concern, five of the nine states covered in their entirety under Section 5 of the Voting Rights Act of 1965 for having discriminatory voting practices prior to Shelby County currently have the second most strict felon voting laws; the other four have the most strict laws, thus barring people convicted of felonies from voting for the rest of their lives.51 The legality of this practice is often called into question, particularly in state legislatures that restrict felons from voting post-sentence. If the purpose of incarceration and serving time is to get restitution for one’s harm to society, then this debt has already been paid during the incarceration, parole, and subsequent probation periods. Disenfranchising people convicted of felonies post-sentence is a response often disproportionate to the crimes committed, especially when these crimes were once considered non-violent misdemeanors prior to the “War on Drugs” and expansion of “tough on crime” policies. With this objection at the forefront of debate, there has been strong backlash from voters in states where this practice is commonplace.

In response to widespread public outcry, some states are ratifying amendments to their constitutions and passing new state legislation. Prior to 2019, Florida was one of the few states which permanently disenfranchised anyone with a felony conviction. However, during the 2018 midterm elections, Florida voters successfully passed an amendment to Florida’s constitution which will restore the right to vote to people with past felony convictions once they have completed probation and parole, with the exception of felons convicted of murder or sexual offenses.52 This amendment is a large leap toward the expansion of voting rights, as an estimated 1.4 million people are expected

https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimatesfelony-disenfranchisement-2016/.

50 Id. 51 Id. 52 Voting Rights Restoration Efforts in Florida, Brennan Center for Justice (Nov. 7, 2018) https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-florida.

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UCLA UNDERGRADUATE LAW JOURNAL to regain suffrage in Florida since the amendment went into effect in January of 2019.53 While some states are making an effort to move towards more progressive voting rights in the realm of incarceration, the United States still has a long way to go. As previously mentioned, minorities are disproportionately arrested and convicted of crimes. This fact, in conjunction with the changing of misdemeanor offenses to felonies, creates a situation where minorities are disproportionately affected by felon disenfranchisement. Thus, those objecting to felon disenfranchisement should argue for protection under the 15th Amendment as well as the remaining Sections of the Voting Rights Act of 1965.

V. Recommendations While many policies in place today make no outright mention of discrimination, their implementation often enacts de facto disenfranchisement at the expense of minority, low income, and youth voters. Nevertheless, solutions exist in the form of new sweeping federal regulations and protections in order to decrease and prevent disenfranchisement through the utilization of the Supremacy Clause of Article IV of the Constitution. Primarily, Congress could create a federal data-collection committee to monitor electoral practices of states and counties in relation to voter turnout. The information gathered by this committee should be used to create a new standard in replacement of Section 4(b) of the Voting Rights Act of 1965, so that Section 5 of the Act can be implemented again as well. Through this committee’s new standard, the emergence of new unfair electoral practices would be blocked by requiring states and counties with voter suppression to seek federal preclearance again.

Further, the federal government can take proactive measures in regards to specific policies which disenfranchise voters. Congress can pass legislation which lists a wide range of approved IDs that states with voter ID laws must accept during elections, thereby providing enough options so as to not burden voters into getting specific IDs merely for the sake of voting. Further, states

53

Id.

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THE LEGALITY OF THE SYSTEMATIC DISENFRANCHISEMENT OF VOTERS IN THE UNITED STATES which insist on maintaining strict photo ID laws should have financial aid for low income voters in order to obtain those IDs, with the intent of ruling out the financial burden that restricts low-income citizens from voting. Conversely, the Supreme Court could rule on a case regarding strict voter ID laws and deem them unconstitutional.

Similar steps may be taken to regulate and address the concern of voter purges. One way to address the issues of voter purges would be to have widespread election-day registration; this can be done either state by state or through federal legislation. This way, if a voter is purged from the roll but still shows up to vote on election day, they can easily register again and vote. Election day voter registration statutes have proven to be successful thus far and have been enacted in sixteen states.54 Alternatively, the Supreme Court could rule on a case involving voter registration and find the practice of removing voters who have not passed away and are not incarcerated from voter rolls to be unconstitutional.

Federal regulations can also be put into place to prevent disenfranchisement through the closure and relocation of polling sites. Specifically, the federal government can pass legislation which sets standards for how many polling places must be located per capita in a county. This statute should also include regulations as to where these sites should be located in order to maintain accessibility to public transportation. Finally, steps can be taken to reduce felon disenfranchisement as well. The federal government should relabel misdemeanors that were escalated to felonies during the “War on Drugs� back down to misdemeanor offenses; this way, people arrested for nonviolent crimes are no longer barred from voting. The Supreme Court can also begin to address the complicated issue of felon disenfranchisement by accepting a case involving post-sentencing incarceration and rule this practice unconstitutional.

54

Automatic Voter Registration and Modernization in the States, Brennan Center for Justice (Apr. 11, 2018) https://www.brennancenter.org/analysis/voter-registration-modernization-states.

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UCLA UNDERGRADUATE LAW JOURNAL Conclusion The current condition of voting rights today undoubtedly disenfranchises many voters. This phenomenon is deeply rooted in the history of the United States, wherein unfair electoral practices spread during periods of federal deregulation and were only contained through new federal actions and Supreme Court decisions. This trend has resurfaced in recent years through numerous tools of disenfranchisement that indirectly and disproportionately affect people based on their race, economic status, and age.

The close examination of both the roots and effects of disenfranchisement is crucial in understanding the state of society today. By disenfranchising millions of voters, the government of the United States has distanced itself from its core founding ideals. However, solutions exist which are within the capacity of Congress and the Supreme Court. By taking steps in congruence with these solutions, the American government will become more inclusive to its people because voting is a fundamental right of American citizenship, and people should have the ability to exercise this right when they choose to do so. Only when these changes have been made will the United States be more representative of its people.

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UCLA UNDERGRADUATE LAW JOURNAL Karina E. Coltun Schneider*

Free Speech Versus Preventing Discriminatory Speech: Applying University Speech Codes to Controversial Speakers ABSTRACT. University speech codes struggle to balance free speech and antidiscrimination rights, impacting administrative decisions toward controversial speakers.

While the First Amendment mandates that public universities protect free speech, increasing calls for protecting minorities against hate speech influences the implementation of speech regulations. In return, the application of speech codes to controversial speakers regularly results in varying outcomes, which range from banning certain speakers to allowing discriminatory threats on campus. In this article, I argue that university speech codes are partial in favor of either free speech or preventing discriminatory speech, instead of balancing these two rights. Speech codes that support anti-discrimination efforts tend to enforce strict speech restrictions, censoring constitutionally-protected expression. In contrast, codes favoring free speech have minimal speech restrictions, allowing controversial speakers to express discriminatory threats. This relationship between speech codes and controversial speakers is driven by different content-based speech regulations. Hence, this article investigates both the language and administrative application of university speech codes to controversial speakers. The analysis centers on three speech codes: bias reporting systems, public forums, and free speech zones. As bias reporting codes prioritize anti-discrimination while public forum and free speech zone codes favor free speech, these distorted speech codes determine administrative judgments on controversial speaker events. Therefore, I argue that university administrators must write and enforce new speech codes balancing free speech and anti-discrimination rights. These codes must incorporate protections for political speech and constitutional content-based speech regulations based on Supreme Court precedent and federal law. *Karina E. Coltun Schneider is a fourth-year political science major and history minor at the University of California, Los Angeles. In addition to her involvement with the UCLA Undergraduate Law Journal, Karina serves as a Justice on the UCLA Undergraduate Students Association Judicial Board. After graduation, she plans to attend law school and pursue a career in the field of public interest law with a specialization in civil liberties and civil rights.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction University speech codes are not just policies that promote censorship on campus. University administrators implement speech codes in an attempt to balance free speech and anti-discrimination rights. At public universities, speech codes are required to uphold constitutional protections and federal rules while balancing these two rights. With regard to free speech, some administrators create codes with limited regulations on expression, including restrictions known as time and place policies. These codes promote open discussion of ideas on campus protected under the First Amendment. Meanwhile, anti-discrimination rights refer to the pursuit of “equality, diversity, and tolerance;”1 these rights are codified in the Fourteenth Amendment2 and statutes like Title VI of the Civil Rights Act of 1964.3 In attempts to promote inclusivity and equal opportunities for students, some administrators impose speech codes to restrict discriminatory rhetoric on campus that threatens groups which have historically been discriminated against.

As a result of the fundamental tension between free speech and antidiscrimination rights, the administrative application of speech codes to controversial speakers often results in conflicting outcomes. University administrators rely on the wording of speech codes to objectively regulate controversial speaker events. Yet, recent evidence reveals conflicting administrative decisions toward controversial speakers that impede on First and Fourteenth Amendment protections. In some cases, administrators at public universities implemented speech codes to unconstitutionally restrict political speech and ban controversial speakers. In contrast, other administrators have interpreted speech codes so as to allow controversial speakers to express discriminatory threats to incite violence on university grounds. Ultimately, these contrasting results reflect how speech codes fail to guide administrative decisions on controversial speakers.

1

S. Cagle Juhan, Free Speech, Hate Speech, and the Hostile Speech Environment, 98 Rᴀ. L. Rᴇᴠ. 1579, (2012).

2 U.S. Const. amend. XIV. 3 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS I contend that the majority of universities enforce speech codes that do not effectively balance free speech and anti-discrimination rights. My analysis reveals that their language tends to be skewed in favor of free speech or antidiscrimination rights, resulting in subjective administrative decisions to allow or censor controversial speakers. The relationship between distorted speech codes and administrative decisions on controversial speakers is primarily driven by one factor: whether or not speech codes include content-based speech regulations.

Therefore, I argue that university administrators must write and enforce new speech codes balancing free speech and anti-discrimination rights. These new codes must incorporate Supreme Court decisions, lower court precedent, and federal laws on political speech protections and constitutional content-based speech restrictions.

To determine why some universities decide to allow controversial speakers while others do not, I analyze three forms of university speech codes: bias reporting systems, public forums, and free speech zones. Each speech code treats content-based speech regulations differently, resulting in a failure to adequately balance free speech and anti-discrimination. My research centers on three instances in which administrators at a public university determined how the speech code applied to a controversial speaker event. All three case studies involve speaker events at public universities that are bound by the First Amendment as public institutions, given that private universities have further leeway to regulate speech.4 In Part I, I examine the history of free speech and anti-discrimination rights at public universities and the case law that influenced the drafting of university speech codes. In Part II, I argue that bias reporting system codes include language favoring anti-discrimination with stringent content-based speech restrictions, guiding administrators to unconstitutionally censor controversial speakers. Then, in Parts III and IV, I demonstrate how the wording of public forum and free speech zone codes lacks content-based speech rules and is overly 4

William A. Kaplin, A Proposed Process for Managing the First Amendment Aspects of Campus Hate Speech 63 Tʜᴇ Jᴏᴜʀɴᴀʟ ᴏꜰ Hɪɢʜᴇʀ Eᴅᴜᴄᴀᴛɪᴏɴ 517–538 (1992).

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UCLA UNDERGRADUATE LAW JOURNAL supportive of free speech. Specifically, administrators apply these codes to allow controversial speakers on campus, even if speakers express discriminatory threats to incite violence. Lastly, in Part V, I provide recommendations for rewriting university speech codes to account for established First and Fourteenth Amendment doctrines, lower court precedent, and federal laws. I argue that speech codes should respect political speech protections on campus and incorporate provisions on specific content-based speech regulations. Although Supreme Court doctrines favor free speech, decisions like Virginia v. Black5 allow for narrow, constitutional contentbased regulations on expression. These decisions can be useful guides to administrators for drafting new speech codes that effectively balance free speech and anti-discrimination rights.

I. Historical Context on the Free Speech Versus AntiDiscrimination Conflict A. The Rise of University Speech Codes In the 1980s and 1990s, increasingly diverse student bodies across American universities experienced a growth of hate speech incidents. For instance, from 1986 to 1990, approximately 250 universities experienced severe racist altercations.6 Therefore, university administrators identified a need to establish speech codes to restrict discriminatory speech and support anti-discrimination efforts, a right protected under the Equal Protection Clause of the Fourteenth Amendment.7 Nevertheless, public universities still recognized the need to uphold the First Amendment.8 Specifically, administrators strived to uphold the role of universities as a “marketplace of ideas.” This concept, popularized by Justice Oliver Wendell Holmes Jr., encourages competition in the exchange of

5

Virginia v. Black, 538 U.S. 334, 343 (2003).

Alice Ma, Campus Hate Speech Codes: Affirmative Action in the Allocation of Speech Rights, 83 Cᴀʟ L. Rᴇᴠ. 699 (1995).

7 U.S. Const. amend. XIV. 8 U.S. Const. amend. I. 6

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS ideas for the formation of truth.9 Dissenting in the case Abrams v. United States,10 Justice Holmes claimed that an open marketplace allows suppression of malevolent ideas without the need for government oversight. As universities are institutions for learning and discussion, they are naturally deemed a marketplace of ideas.

However, the prevalence of discriminatory incidents on campus encouraged administrators to implement some restrictions on free speech. In response to the rise of hate speech incidents, new speech codes began to regulate the location and time of speech activities, as opposed to whether the speech could take place at all.11 Administrators wanted speech codes to restrict the location and time of certain expressive activities like public speeches so as to avoid disturbing the learning environment, but completely avoided any regulations on the content of expression. Meanwhile, administrators at other public universities desired more stringent speech restrictions to protect antidiscrimination rights. Rebuking Holmes’ argument, authors David McGowan and Ragesh Tangri claim that the marketplace of ideas notion is heavily “pervaded by racism,” which allows the expression of all ideas – even hate speech.12 Administrators recognized that hate speech such as discriminatory threats to incite violence needed to be restricted in order to promote tolerance and equality on campus. Thus, administrators began drafting speech codes involving content-based restrictions on discriminatory expression while still attempting to protect free speech.

Amidst attempts to curb racist events on campus in the 1990s, federal court decisions began striking down speech codes with content-based provisions on expression. In Dambrot et al. v. Central Michigan University, a federal court held

9

David McGowan and Ragesh Tangri, A Libertarian Critique of University Restrictions of Offensive Speech, 79 Cᴀʟ L. Rᴇᴠ. 825, 834 (1991).

10 Abrams v. United States, 250 U.S. 630, 40 S. Ct. 17, 63 L. Ed. 1173 (1919).

11 David Hudson Jr. and Andrew Gargano, Free-Speech Zones, Fʀᴇᴇᴅᴏᴍ Fᴏʀᴜᴍ Iɴsᴛɪᴛᴜᴛᴇ (2017), https://bit.ly/2tL9Z1y.

12 David McGowan and Ragesh Tangri, A Libertarian Critique of University Restrictions of Offensive Speech, 79 Cᴀʟ L. Rᴇᴠ. 825, 887 (1991).

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UCLA UNDERGRADUATE LAW JOURNAL that the university’s speech code on racial harassment was “overbroad, vague, and an impermissible viewpoint restriction.”13 The court ruled that this code enforced an unconstitutional content-based restriction on the views of a speaker, even if the expression was classified as racial harassment. Due to this decision, administrators feared drafting new speech codes with content-based regulations. Legal scholar Jon Gould notes that two years after the Dambrot case, the percentage of universities with content-based speech policies against verbal racial harassment fell by 3%.14 Moreover, 11% of universities dropped their speech codes entirely.15 In order to avoid legal action, some administrators removed speech codes with any content-based speech restrictions. Cases such as Dambrot sparked concern among university administrators about the constitutionality of their own speech codes, especially about provisions intended to restrict the expression of controversial speakers.

B. Case Law on Content-Based Speech Restrictions The precedent for constitutional content-based restrictions on expression stems from two major Supreme Court cases: Brandenburg v. Ohio and Virginia v. Black. In Brandenburg v. Ohio, a leader of the Ku Klux Klan who spoke at a public rally was convicted under an Ohio law criminalizing advocacy of crime and violence. The Supreme Court upheld this law, allowing speech restrictions on “advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”16 In order to distinguish between hateful speech and speech intended to incite violence, the Supreme Court outlined a three prong test allowing content-based regulations on any kind of speech – this is known as the imminent lawless action test. The Supreme Court further noted that this is a very stringent standard as all three elements, including intent, immediacy, and likelihood, must be satisfied. The most

13

Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995).

Jon B. Gould, The Precedent That Wasn’t: College Hate Speech Codes and the Two Faces of Legal Compliance, 35 Lᴀᴡ & Sᴏᴄ'ʏ Rᴇᴠ.353 (2001).

15 Id. 16 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

14

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS difficult criterion to prove is likelihood that the speech will incite violence.17 Brandenburg is the foundational case establishing the imminent lawless action test for content-based regulations on speech, and later influenced the wording of university speech codes with content regulations.

Beyond speech that incites violence, public institutions can censor hate speech such as discriminatory threats with content-based regulations. Hate speech does not yet have a legal definition under federal law. However, constitutional law professor William Kaplin offers a valuable definition of hate speech: “verbal and written words … that convey a grossly negative assessment of particular persons or groups based on their race, gender, ethnicity, religion, sexual orientation, or disability.”18 Hate speech thus refers to offensive speech that targets individuals and groups, especially from historically discriminated communities.

However, hate speech is a protected form of expression unless it meets certain criteria. In Virginia v. Black, the Supreme Court outlined a constitutional content-based restriction on discriminatory threats. Ruling on an incident where the Ku Klux Klan burned a cross on the lawn of an African American family’s home, the Supreme Court held that a ban on cross burning is constitutional as this speech amounted to a “true threat.” In the majority opinion, Justice O’Connor defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.”19 The Supreme Court extended the imminent lawless action test from Brandenburg to include specific discriminatory threats, thereby expanding constitutional content-based restrictions on expression to also cover discriminatory speech – this became the true threat test. As with Brandenburg, the Supreme Court’s decision in Black allowed administrators to include narrowly tailored content-based restrictions within speech codes to promote a non-discriminatory campus climate.

17

Id. William A. Kaplin, A Proposed Process for Managing the First Amendment Aspects of Campus Hate Speech 63 Tʜᴇ Jᴏᴜʀɴᴀʟ ᴏꜰ Hɪɢʜᴇʀ Eᴅᴜᴄᴀᴛɪᴏɴ 517-518 (1992).

19 Virginia v. Black, 538 U.S. 334, 343 (2003).

18

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UCLA UNDERGRADUATE LAW JOURNAL Despite the Black ruling, the Supreme Court has generally been wary of content-based restrictions on political speech. Like hate speech, political speech may involve controversial subjects and can be offensive to some listeners. The Supreme Court has established specific protections for political speech on school grounds. In Tinker v. Des Moines, the Court held that a school code banning black armbands in opposition to the Vietnam War infringed on the political views of students.20 The case recognized protections for political speech in educational settings and further dissuaded administrators from adopting content-based restrictions on political speech. The Supreme Court additionally ruled that political speech “[should] not disrupt classwork or interfere with the rights of others.�21 These rights include anti-discrimination protections enforced in the Fourteenth Amendment and federal laws.

Therefore, the Tinker holding prevents content-based regulations on political speech deemed offensive, but allows restrictions on political expression that infringes upon other protected rights, like equal protection under the law. This ruling extends beyond high schools, requiring all public universities to protect and possibly regulate forms of political speech.

Despite the speech doctrines presented in Brandenburg, Black, and Tinker, administrators have struggled to develop speech codes that adequately protect political speech while regulating hate speech, resulting in a general favoritism towards either free speech or anti-discrimination. The skewed nature of university speech codes is especially prevalent in three categories of speech regulations: bias reporting systems, public forums, and free speech zones. In investigating these three categories, I analyze how specific speech codes abide by or neglect the criteria found in Brandenburg, Black, and Tinker. I then present my rationale on why speech codes must be rewritten by incorporating the criteria established by these cases. In doing so, new speech codes will fulfill a larger purpose of adequately upholding free speech and anti-discrimination rights.

20 21

Tinker v. Des Moines Independent Community School District, 393 US 503, 3 (1969).

Id.

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS II. Bias Reporting Codes A. Misinterpreting Bias in Discriminatory Versus Political Speech Speech codes on bias reporting favor anti-discrimination rights, including overbroad, often unconstitutional content-based regulations that target political speech. The Oxford Dictionary defines bias as a “inclination or prejudice for or against one person or group.”22 Because offensive, biased speech can result in physical or emotional distress, universities institute reporting systems to investigate biased disturbances on campus. According to the Foundation for Individual Rights in Education (FIRE), an organization that monitors First Amendment rights on college campuses, bias reporting codes allow “students, staff, faculty, or the community…to anonymously report offensive, yet constitutionally protected, speech to administrators.”23 This speech code category favors anti-discrimination, allowing administrators to investigate any form of offensive or biased expression and regularly resulting in the censorship of political speech. Some bias reporting codes involve “bias categories widely found in discrimination statutes (race, sex, sexual orientation, etc.)” 24 This includes statutes like Title VI of the Civil Rights Act of 1964,25 which targets racial discrimination, and Title IX of the Education Amendments Act of 1972,26 which outlaws sex discrimination. Bias reporting codes strive to extend these protections against discriminatory speech to historically disadvantaged minority groups. These codes also generally incorporate the constitutional content-based restrictions against discrimination, relying on precedent such as Black.

22

“Definition of Bias.” Oxford University Press. 2019. en.oxforddictionaries.com/definition/bias (4 June 2018).

23 2017 Report on Bias Reporting Systems, Fᴏᴜɴᴅᴀᴛɪᴏɴ Fᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏɴ (2017), www.thefire.org/first-amendment-library/special-collections/fire-guides/report-onbias-reporting-systems-2017/.

24 Id. 25 Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d.

26 Title IX of the Education Amendments Act of 1972.

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UCLA UNDERGRADUATE LAW JOURNAL However, some bias reporting codes include political speech as a potential bias,27 granting administrators the power to investigate and censor offensive political speech. Regulating political expression in this manner disregards the Supreme Court’s ruling in Tinker, which protected political speech unless it infringes on other rights such as equal protection under the law.28 As certain bias reporting speech codes allow investigations on all types of bias, the codes may encourage administrators to unconstitutionally censor political speech that conflicts with their own views. Under these circumstances, administrators apply bias reporting codes to unconstitutionally ban controversial speakers based on the political content of their speech.

The Supreme Court has usually found content-based restrictions on biased speech to be unconstitutional unless the speech is discriminatory, such as expression attacking historically marginalized groups. In R.A.V. v. City of St. Paul, the Supreme Court prohibited restrictions on “fighting words … [deemed] messages of ‘bias motivated’ hatred.”29 Like Black, this case involved an ordinance banning cross burnings that targeted African Americans. Yet, Black created one sole exception to free speech protections: censorship of discriminatory threats. In contrast, the ordinance in R.A.V. restricted fighting words, which can be any type of offensive speech that inflicts injury or intends to incite an immediate violence.30 Through this decision, the Supreme Court held that selectively banning fighting words based on bias is unconstitutional.

Still, certain content-based restrictions on biased speech are permissible.

The Supreme Court also ruled in R.A.V that prohibiting fighting words which are directed at certain persons or groups and violate the Equal Protection Clause constitutes a permissible speech restriction.31 Ultimately, this doctrine was further elaborated on in Black, which replaced the fighting words doctrine with 27

2017 Report on Bias Reporting Systems, Fᴏᴜɴᴅᴀᴛɪᴏɴ Fᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏɴ (2017), www.thefire.org/first-amendment-library/special-collections/fire-guides/report-onbias-reporting-systems-2017/.

28 U.S. Const. amend. XIV. 29 R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

30 David Hudson Jr. and Andrew Gargano, Free-Speech Zones, Fʀᴇᴇᴅᴏᴍ Fᴏʀᴜᴍ Iɴsᴛɪᴛᴜᴛᴇ (2017) https://bit.ly/2tL9Z1y.

31 R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS the true threat test. Black created permissible content-based speech restrictions on biased expressions that historically incite violence against minority groups – a stringent criterion to meet for censoring speech.

Despite the specific content-based restrictions on violent and discriminatory speech in the R.A.V. and Black decisions, administrators still implemented speech codes favoring anti-discrimination and targeting biased political speech. In Doe v. the University of Michigan, a graduate student challenged a speech code restricting speech that could harm “an individual on the basis of race, ethnicity, religion, sex, sexual orientation, etc.”32 The student was researching the biological nature of gender differences and claimed this speech code infringed on his academic study. A federal judge struck down the code which prohibited “certain speech because [the university] disagreed with ideas or messages sought to be conveyed.”33 In promoting anti-discrimination protections, administrators imposed an unconstitutional content-based restriction on speech deemed biased. University administrators failed to acknowledge that restrictions on speech are only valid when they involve discriminatory threats that incite violence.

The rise of bias reporting codes at universities reflects the persistence of speech codes in favor of anti-discrimination, often imposing unconstitutional content-based restrictions on all biased speech, including political speech. This occurred in the case of Alice Walker, whose speaker event at the University of Michigan Ann Arbor was canceled due to administrative targeting of her biased speech, which was in fact constitutionally-protected political expression. This case affirms the need to revise speech codes to enforce anti-discrimination protections while still protecting free speech rights.

32

Doe v. the University of Michigan, 721 F. Supp. 852 (E.D. Mich 1989).

Jon B. Gould, The Precedent That Wasn’t: College Hate Speech Codes and the Two Faces of Legal Compliance, 35 Lᴀᴡ & Sᴏᴄ'ʏ Rᴇᴠ.353 (2001).

33

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UCLA UNDERGRADUATE LAW JOURNAL B. Unjust Censorship of Alice Walker at the University of Michigan Drawing from Title VI of Civil Rights Act of 1964,34 a statute outlawing forms of discrimination including harmful expression, the University of Michigan Ann Arbor implemented a speech code with a bias reporting system.

The speech code states that “making insulting comments about someone’s traditional manner of dress or geographic origin are hypothetical examples of a bias-related incident.”35 The wording of this code stems from Title VI, which prohibits discrimination on “race, color, or national origin.”36 This speech code intends to prevent discrimination by enforcing a content-based restriction on discriminatory speech. Unfortunately, the code fails to distinguish between protections for political bias and discrimination towards individuals of specific a geographical or national origin. As a result, administrators who drafted the speech code neglected to outline which forms of bias can be restricted based on content. FIRE therefore gives this speech code a red light rating, a direct violation of the First Amendment as it “substantially restricts the freedom of speech.”37 The wording of the code is biased in favor of anti-discrimination, imposing content-based regulations without protections for biased, yet constitutionally-protected political speech.

The content-based restrictions found in the University of Michigan’s bias reporting speech code were used to prevent Alice Walker from discussing the Israel-Palestine conflict at an event on campus in 2013. According to Scott Jaschik, a writer for Inside Higher Ed, the disinvitation was based on Walker’s literary reputation, as her book The Cushion in the Road criticizes the policies of Israel’s government. 38 In one chapter, Walker notes that “the United States and 34

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d.

Expect Respect: Frequently Asked Questions, Fᴏᴜɴᴅᴀᴛɪᴏɴ Fᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏn. (13 May 2018), www.thefire.org/fire_speech-codes/umich-bias-faq/.

36 Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d.

37 Using the Database, Fᴏᴜɴᴅᴀᴛɪᴏɴ Fᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏɴ. (May 13 2018), www.thefire.org/spotlight/using-the-spotlight-database/.

38 Scott Jaschik, Alice Walker Disinvited, Inside Higher Ed, 26 Aug. 2013, www.insidehighered.com/news/2013/08/16/university-michigan-rescinds-invitation-alicewalker (last visited 13 May 2018).

35

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS Israel working together … have done terrible things to others in their greed to take resources away [from Palestinians].”39 Israeli members of the community reported that Walker’s speech would express hateful, biased rhetoric against their geographic origin. University administrators then used this bias reporting code to justify disinviting Walker.

While this censorship attempted to prevent discriminatory bias, conflicting interpretations of bias infringed on Walker’s right to engage in political speech.

The Israel-Palestine conflict is an issue regularly debated on college campuses, often presenting a gray area between hate speech and political speech. Hate speech would involve discriminatory, specific threats towards individuals of a certain geographic origin. Yet, discussing the actions of Israel’s government constitutes political speech, a protected form of expression. While Walker’s speech is biased in favor of Palestinian causes, and potentially offensive to some Israelis, it should not have been deemed discriminatory biased speech as it did not specifically threaten Israelis. Also, administrators censored this biased speech even though it does not threaten Israel’s government – it just expresses a partisan political opinion. As Walker’s speech does not meet the criteria to be considered a threat that incites violence, it does not violate the Black standard.

Nevertheless, administrators applied this bias reporting code with the intent to promote anti-discrimination efforts, unconstitutionally censoring Walker’s views based on the expected content of her speech. In this case, administrators targeted the politically-biased expressions of a speaker who is legally protected under Tinker, which promotes free political expression in the learning environment. It is ironic that the same university in the aforementioned Doe case once again issued a new code unconstitutionally regulating the content of speech. While this is a singular example, it reflects a larger issue with bias reporting codes: vague definitions of biased speech. Administrators apply these codes favoring anti-discrimination to the point of overly restricting the politically-biased speech of controversial speakers – expression that often 39

Alice Walker, Tʜᴇ Cᴜsʜɪᴏɴ ɪɴ ᴛʜᴇ Rᴏᴀᴅ: Mᴇᴅɪᴛᴀᴛɪᴏɴ ᴀɴᴅ Wᴀɴᴅᴇʀɪɴɢ ᴀs ᴛʜᴇ Wʜᴏʟᴇ Wᴏʀʟᴅ Aᴡᴀᴋᴇɴs ᴛᴏ Bᴇɪɴɢ ɪɴ Hᴀʀᴍ’s Wᴀʏ (2014).

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UCLA UNDERGRADUATE LAW JOURNAL conflicts with their own political leanings. The censorship of Walker’s political speech presents a need to implement new speech codes that balance antidiscrimination and free speech rights in line with Supreme Court precedent.

While bias reporting systems unnecessarily limit protected speech, other speech codes like public forums struggle instead with a lack of content-based regulation targeting discriminatory threats.

III. Public Forum Codes A. A Baseline Regulation: Time, Place and Manner Rules Whereas bias reporting codes tend to overly restrict political speech, public forum codes have the unfortunate effect of enabling some controversial speakers to express discriminatory threats to incite violence on campus. Public forums are places “used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”40 As public universities are considered a marketplace of ideas and are funded by federal and state governments, spaces on campus are deemed public forums.

Public forum codes rely heavily on Supreme Court doctrines that place limited restrictions on speech. In Perry Education Association v. Perry Local Educators Association, the Supreme Court held that “in a limited public forum, the government may only impose reasonable time, place, and manner restrictions.”41 Time and place restrictions refer to specific locations and dates for speaker events. Manner indicates the type of speaking event, such as a discussion panel or rally. Hence, public institutions that are considered limited public forums can regulate speech on specific time, place, and manner criteria.

Consequently, in Rosenberger v. Rector and Visitors of University of Virginia, the Supreme Court clarified that the grounds of public universities are considered limited public forums.42 Thus, universities are required to uphold free speech

40

Matthew D. McGill, Unleashing the Limited Public Forum: A Modest Revision to a Dysfunctional Doctrine, 79 Sᴛᴀɴ. L. Rᴇᴠ. 925, 933 (2000).

41 Perry Education Association v. Perry Local Educators Association 460 U.S. 37 (1983).

42 Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995).

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS protections while enforcing reasonable time, place, and manner restrictions on expression. These two decisions influence the wording of public forum codes, allowing for narrow locational and time-based restrictions on campus speech activities.

Guest speakers often need administrative approval to use public forums on campus43 and administrators rely on public forum codes that contain only time, place, and manner restrictions on speakers.44 These public forum codes support free speech with minimal restrictions based on time and place, often excluding content-based speech restrictions. Specifically, as long as a speaker event meets time, place, and manner criteria that derive from Perry and Rosenberger, controversial speakers can express anything at a public forum. Such codes impact administrative decisions to allow controversial speakers who may express discriminatory threats to incite violence on campus. The discriminatory threats that arise with allowing speakers like Milo Yiannopoulos on campus indicate the necessity for creating new speech codes with content-based speech regulations for anti-discrimination alongside free speech protections.

B. Yiannopoulos’ Discriminatory Threats Towards a Transgender Student The public forum speech code at the University of Wisconsin relies on limited regulations in favor of free speech. According to the public forum code, the thirteen campuses within University of Wisconsin system “may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt ordinary activities.”45 The speech code applies the Rosenberger doctrine 43

Wesley Strong, Repression of Student Activism on College Campuses, 410 Policing the Campus: Academic Repression, Surveillance, and the Occupy Movement 17 (2013), https://www.jstor.org/stable/42981731 (last visited 13 May 2018).

44 David Hudson Jr. and Andrew Gargano, Free-Speech Zones, Fʀᴇᴇᴅᴏᴍ Fᴏʀᴜᴍ Iɴsᴛɪᴛᴜᴛᴇ (2017) https://bit.ly/2TnSFy1.

45 University of Wisconsin System Board of Regents’ 2015 Statement Reiterating the Board’s Commitment to Academic Freedom and Affirming Its Commitment to Freedom of Expression, Uɴɪᴠᴇʀsɪᴛʏ ᴏꜰ Wɪsᴄᴏɴsɪɴ Sʏsᴛᴇᴍ. (11 December 2015), http://profs.wisc.edu/wp-content/ uploads/2015/12/BoR-Academic-Freedom.pdf.

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UCLA UNDERGRADUATE LAW JOURNAL on time, place, and manner restrictions to limited public forums on campus. The speech code also references Tinker, reiterating that speakers who wish to discuss political topics should not disturb educational and administrative activities on campus. The code effectively institutes limited speech regulations within constitutional boundaries. Yet, the code fails to include restrictions on the content of speech expressed at public forums, though such provisions are necessary to protect anti-discrimination rights on campus.

Due to the lack of content-based speech regulations, this overly permissive speech code provided Milo Yiannopoulos the opportunity to threaten violence against a transgender student while speaking at the University of Wisconsin, Milwaukee in 2016. Administrators deemed that Yiannopoulos’ event respected time, place, and manner criteria to hold a public forum. At this forum, Yiannopoulos mocked a transgender student by displaying her name and photo, while also harassing her for using the woman’s bathroom.46 Yiannopoulos also asked if anyone had “come into contact with this person?”47 This speech meets the true threat test criteria to be considered a threat to incite violence. First, Yiannopoulos intended to threaten this individual, asking audience members if they have “come into contact” with the student. By sharing information like her name and showing a picture, he is encouraging listeners to attack this transgender student. Second, it is likely that this speech will incite violence, as Yiannopoulos provided information enabling listeners to find the student and riled up the crowd with this call to action. Third, this speech will likely spark imminent violence, since the student is on campus and the attendees could easily come into contact with her. As this speech meets Brandenburg criteria and amounts to a threat to incite violence, it would have been perfectly constitutional to ban Yiannopoulos from speaking on campus. Yet, the University’s neglect to include a content-based speech restriction resulting in Yiannopoulos’ violence-threatening actions towards this student.

46

Claire Landsbaum, Alt-Right Troll Uses Campus Visit to Openly Mock a Transgender Student, The Cut, 2016, https://bit.ly/2XTDLPq (last visited 13 May 2018).

47 Id.

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS Yiannopoulos’ speech also meets the Black criteria to be deemed a discriminatory threat. This speech targets gender identity, which the Obama administration deemed as “sex discrimination” under Title IX, which states “no person in the United States shall, on the basis of sex … be subjected to discrimination under any education program or activity receiving Federal financial assistance.”48 Since this speaker event occurred under Obama’s presidency, the university is bound to uphold this policy considering discriminatory threats against gender identity as a form of sex discrimination. In addition, the Fourteenth Amendment requires Congress to enforce legislation regarding antidiscrimination and equal protection, like Title IX, which further binds public universities to enforce protections against sex discrimination.49 The University of Wisconsin’s public forum code lacked content-based restrictions on speech; administrators applied this code, allowing Yiannopoulos to present his discriminatory threat. While the university itself is not discriminating against the transgender student, its public forum speech code enabled Yiannopoulos to engage in discriminatory behavior, thus violating Title IX and the Fourteenth Amendment. Since administrators must approve speaker events in these public forums, the university can be held accountable for failing to prevent discrimination on campus. Moreover, the speech code neglects to include any constitutional content-based restrictions on discriminatory speech targeting gender identity and thus fails to ensure equal protection under the law for transgender students.

Administrators could have blocked Yiannopoulos from speaking on campus due to his previous threatening comments. On Breitbart, Yiannopoulos wrote, “never feel bad for mocking a transgender person. If our mockery drives them to get the help they need, we may save their life.”50 Once again, this speech meets Brandenburg and Black criteria for content-based regulations on 48Title

IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681.

U.S. Const. amend. XIV. 50 Milo Yiannopoulos, ‘Trannies are Gay’ by Milo, Breitbart, 2016, https://www.breitbart.com/social-justice/2016/10/24/full-text-trannies-gay-milo/ (last visited 13 May 2018).

49

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UCLA UNDERGRADUATE LAW JOURNAL discriminatory, violence-threatening speech. Yiannopoulos’ speech intended to incite violence and presented a specific call to action by mocking transgender individuals. This speech also riled up his target audience to commit acts of violence, meeting the likelihood criterion. Thus, administrators could have legally restricted Yiannopoulos from speaking on campus. Nevertheless, administrators applied a public forum code without content-based restrictions to allow Yiannopoulos’ speaker event—this only gave Yiannopoulos another opportunity to threaten and incite violence against the transgender community.

This instance demonstrates the need to create speech codes beyond minimal time and place restrictions; this requires including criteria that targets unconstitutional discriminatory speech based on Supreme Court precedent but still enforces free speech rights.

IV. Free Speech Zone Codes A. A Code Violating Free Speech and Neglecting AntiDiscrimination Rights Much like public forum codes, free speech zone codes heavily favor free expression without including any content regulations on speech. Free speech zone codes “[limit] expressive activities to small and/or out-of-the-way areas on campus.”51 Therefore, university speech codes on free speech zones slightly differ from public forum regulations. Both free speech zone and public forum codes involve “content-neutral time, place and manner restrictions on speech.”52 However, public forum codes apply to all public spaces on campus whereas free speech zones limit expressive activity to specific public areas.

While these zones include time, place, and manner restrictions on speech, the narrow place restriction for free expression neglects the Perry and Rosenberger decisions that all public spaces are protected public forums.

51

Spotlight On Speech Codes 2018: The State of Free Speech on Our Nation's Campuses, Fᴏᴜɴᴅᴀᴛɪᴏɴ Fᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏɴ. (13 May 2018), www.thefire.org/spotlight-on-speech-codes-2018/#fn51.

52 David Hudson Jr. and Andrew Gargano, Free-Speech Zones, Fʀᴇᴇᴅᴏᴍ Fᴏʀᴜᴍ Iɴsᴛɪᴛᴜᴛᴇ (2017) https://bit.ly/2TnSFy1.

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS Lower courts have consistently struck down university speech codes that create free speech zones. In the 2004 case Roberts v. Haragan, a federal judge struck down a Texas Tech University code that created a free speech zone. The judge held that “these areas are public forums… irrespective of whether the university had designated them or not.”53 Thus, the court ruled that the free speech zone code violated Perry by unreasonably limiting expressive activities with restrictive place criteria. Broadly applied, this decision established that all codes concerning free speech zones are unconstitutional. Despite this lower court decision, many universities still maintain free speech zones that restrict free expression to certain locations on campus. According to FIRE, at least fiftytwo universities across the United States have free speech zone policies outlining only select areas on campus for free expression.54 Therefore, the pervasiveness of free speech zones, despite a consensus among federal courts about the unconstitutional nature of this speech code category, further impacts attempts to enforce free speech and anti-discrimination rights on campus in line with court precedent and federal law.

Free speech zone codes are overly permissive, favoring free speech with minimal speech restrictions and no content-based regulations. These codes influence administrators to permit controversial speakers who express discriminatory threats to incite violence. Patty Kean, the co-chair of the Diversity Committee at Curry College, argues that free speech zones balance free speech and antidiscrimination, providing a space that encourages “the development of broader and integrated perspectives,” no matter how offensive.55 Thus, the general intent behind free speech zones is to promote the inclusion of all speech, encouraging minority participation.

53Roberts

v. Haragan 346 F. Supp. 2d 853 (N.D. Tex. 2004).

Spotlight On Speech Codes 2018: The State of Free Speech on Our Nation's Campuses, Fᴏᴜɴᴅᴀᴛɪᴏɴ Fᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏɴ. (13 May 2018), www.thefire.org/spotlight-on-speechcodes-2018/#fn51.

55 Patty Kean, Free Speech Zones on Campus, 91 Academe 30 (2005), https://www.jstor.org/stable/40252850?seq=1#metadata_info_tab_contents (last visited 13 May 2018).

54

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UCLA UNDERGRADUATE LAW JOURNAL Many opponents argue that free speech zones violate protections for free expression. David Hudson and Andrew Gargano, two scholars at the Freedom Forum Institute, claim that free speech zones violate the Perry doctrine by “severely [limiting] the areas in which free speech can occur.”56 Thus, these codes enforce unconstitutional restrictions on free speech. Hudson and Gargano fail to further acknowledge that free speech zones codes often result in discriminatory speech on campus. Similar to public forum codes, a speaker within a free speech zone can express anything as long as basic time, place, and manner criteria are met. Although free speech zone codes violate the First Amendment, these codes also tend to favor free speech due to their lack of content-based speech regulations. Moreover, the unconstitutional nature of these codes furthers the argument in favor of creating new speech codes in line with Supreme Court precedent.

B. Demeaning Threats Towards Women at Arkansas State University Arkansas State University’s free speech zone allowed a radical pastor to express discriminatory threats to incite violence. According to the Student Handbook, “there are several areas designated as a Free Expression Area for speeches and demonstrations at Arkansas State University.”57 The code restricts expressive activity to certain “free speech zones” on campus. FIRE gives the speech code a yellow light rating, suggesting it is an “ambiguous policy that too easily encourages administrative abuse and arbitrary application.” 58 Furthermore, this code fails to include any constitutional content-based regulations on speech, disregarding anti-discrimination accommodations by failing to protect students from discriminatory threats.

56

David Hudson Jr. and Andrew Gargano, Free-Speech Zones, Fʀᴇᴇᴅᴏᴍ Fᴏʀᴜᴍ Iɴsᴛɪᴛᴜᴛᴇ (2017) https://bit.ly/2tL9Z1y.

57 Student Handbook 2015 - 2016, Aʀᴋᴀɴsᴀs Sᴛᴀᴛᴇ Uɴɪᴠᴇʀsɪᴛʏ 81. (13 May 2018) www.astate.edu/dotAsset/bacc6eb5-3d00-495d-a7ce-47ae9ab3dc0c.pdf.

58 Using the Database, Fᴏᴜɴᴅᴀᴛɪᴏɴ ꜰᴏʀ Iɴᴅɪᴠɪᴅᴜᴀʟ Rɪɢʜᴛs ɪɴ Eᴅᴜᴄᴀᴛɪᴏɴ. (13 May 2018), www.thefire.org/spotlight/using-the-spotlight-database/.

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS The free speech zone at Arkansas State University allowed a radical preacher to spread discriminatory threats targeting students on campus. Brother Ross, a well-known preacher in Arkansas, “[referred] to many women on campus as whores, sluts and Jezebels,” as they passed by.”59 This speech meets the Brandenburg and Black doctrines to be considered a discriminatory threat to incite violence. First, Brother Ross intentionally attacked individual women with these remarks. Second, this speech is likely to incite violence, rallying and encouraging a crowd of listeners to attack these women. Third, this threat of violence is imminent, as the women are individually attacked and easy targets of nearby crowd members. The pastor’s speech specifically threatened violence against these women, which could have been prevented with a content-based regulation on speech. Nevertheless, administrators relied on a free speech zone code, deeming that the preacher met basic time, place, and manner criteria to speak on campus.

Although the free speech zone code may limit expression to certain spaces on campus, the code favors free speech efforts and disregards antidiscrimination rights. Brother Ross’ speech threatened female bystanders based on their sex, which violates Title IX protections against sex discrimination. 60 Like the public forum policy, the university code on the free speech zone does not specifically condone discrimination on campus. Yet, the speech code fails to protect students from discrimination. Since administrators must approve these controversial speaker events in the free speech zone, based on time, place, and manner criteria, universities can be liable for discriminatory statements that occur on their campuses. Moreover, the speech code did not include any content-based regulations on discriminatory threats that incite violence. Thus, the speech code disregards enforcement of the Black holding on discriminatory threats and Fourteenth Amendment protections for anti-discrimination.

59

Blake Rylant and Michelle Gould, 'You're All Whores: Passing Preachers Create Controversy with Extremist Messages, The Herald, 2015, https://bit.ly/2TnSFy1 (last visited 13 May 2018).

60 Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681.

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UCLA UNDERGRADUATE LAW JOURNAL As in Milo Yiannopoulos’ case, there is documented evidence that Brother Ross expressed similar threats before this speaker event. Five days before the speaker event at Arkansas State University, Brother Ross spoke at W.C. Ferguson Memorial Chapel, where he claimed, “all women are whores” and expressed discriminatory threats targeting specific women.61 This is another example of speech that threatens violence against women. Arkansas State administrators could have banned Brother Ross from campus, placing contentbased restrictions on his speech by referencing these previous discriminatory threats. However, administrators relied on a speech code without content-based regulations on speech, allowing Brother Ross to once again threaten violence against women. Incidents such as this case affirm the need to rewrite and enforce new speech codes that incorporate free speech protections for political expression and simultaneously enforce anti-discrimination measures through constitutional content-based speech regulations.

V. Recommendations for Implementing Constitutional University Speech Codes The struggle to balance free speech and anti-discrimination in university speech codes ties back to the concept of neutrality in speech regulations.

Administrators feel they are “damned if they do and damned if they don’t” implement speech regulations.62 These conflicting attitudes towards implementing speech regulations introduces a complex situation: either administrators promote free expression or restrict speech for anti-discrimination rights such as equality, diversity, and tolerance. Most administrators try to find a middle ground, implementing speech codes with “objectively neutral criteria,” such as regulating how speech takes place as in time, and place, and manner restrictions.63 Moreover, McGowan and Tangri argue that the diverse student body and community 61

Jared Holt, Brother Ross’ Preaches Controversial Christianity, Causes Stir Among Students, The Echo, 2015, https://bit.ly/2IXUPk0/ (last visited 31 Jan 2019).

62 David L. Martinson, Vulgar, Indecent, and Offensive Student Speech: How Should Public School Administrators Respond? 71 The Clearing House 6 (1998).

63 David McGowan and Ragesh Tangri, A Libertarian Critique of University Restrictions of Offensive Speech, 79 Cᴀʟ L. Rᴇᴠ. 825, 834 (1991).

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS should determine popular ideas instead of university administrators.64 This allows administrators to avoid endorsing or contesting the views of controversial speakers. However, administrators should not be neutral towards discriminatory threats that incite violence towards minority groups. Administrators must recognize the mandate for all public universities to enforce constitutional protections, court precedent, and federal laws on anti-discrimination, and should do so by drafting new speech codes.

Furthermore, Alice Ma presents a rationale in favor of content-based speech regulations and explains how free speech allows the expression of all ideas, including hate speech. She argues this impacts minority participation in the marketplace of ideas, as “hate speech silences minority voices…[through] passivity, reticence, and self-imposed anonymity.”65 Hate speech results in the self-censorship of individuals from minority groups. Ma claims that administrators should not be neutral to speech expressed on campus, which may infringe on equal protection rights and violate anti-discrimination laws.

Administrators must instead enforce regulations on speech to promote inclusion of minority groups through equal opportunities. Meanwhile, administrators should remain neutral towards the expression of political speech that does not incite or promote violence, in line with the Tinker doctrine. Overall, administrators must neglect their neutrality in cases of discriminatory threats, while upholding neutrality on issues of political speech.

Moreover, anti-discrimination rights are afforded to individuals and groups under the Fourteenth Amendment and should be as respected as the First Amendment. Anti-discrimination includes the right to equal protection under law,66 which derives from the Fourteenth Amendment, alongside provisions like Title VI and IX. However, Ma claims that Americans believe the Fourteenth Amendment applies to “a minority of different people.”67 This view of the 64

Id. Alice Ma, Campus Hate Speech Codes: Affirmative Action in the Allocation of Speech Rights, 83 Cᴀʟ L. Rᴇᴠ. 699, 731, 732 (1995).

66 U.S. Const. amend. XIV, § 1.

67 Alice Ma, Campus Hate Speech Codes: Affirmative Action in the Allocation of Speech Rights, 65

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UCLA UNDERGRADUATE LAW JOURNAL Fourteenth Amendment marginalizes its anti-discrimination protections, presenting the notion that free speech has a higher priority as it is more applicable to all Americans. Favoring free speech rights over anti-discrimination rights is especially prevalent in public forum and free speech zone codes. These codes neglect to include content-based restrictions on discriminatory threats uttered by speakers. Yet, Ma asserts that “the Fourteenth Amendment's Equal Protection Clause provides a justification for hate speech regulations that preserves First Amendment values and extends speech rights to all.”68 Enforcing Fourteenth Amendment protections, lower court precedent, and federal rules in university speech codes will allow administrators to promote free speech and anti-discrimination on campus. Administrators must equally respect these two rights while drafting speech codes.

I therefore recommend that administrators carefully write speech codes accounting for established First and Fourteenth Amendment doctrines. First, speech codes should respect protections for political speech of speakers on campus. Administrators can apply the Tinker holding, which outlines specific restrictions on political speech. Second, university administrators should incorporate provisions involving specific content-based regulations on speech.

Although Supreme Court doctrines favor free speech, decisions like Black, Brandenburg, and Tinker allow narrow, constitutional content-based regulations on expression. These decisions should be useful guides to administrators drafting new speech codes. Third, speech codes must respect federal legislation and lower court decisions. In regards to anti-discrimination rights, statutes like Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 further outline Fourteenth Amendment protections.

Referring to lower court decisions, university administrators must research and keep track of new decisions relating to university speech codes. For instance, administrators must recognize federal court cases like Roberts, which establishes that free speech zones are an unconstitutional category of speech regulations.

83 Cᴀʟ L. Rᴇᴠ. 699, 731, 732 (1995).

68 Id.

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS Maintaining awareness of these lower court decisions will prevent administrators from instituting codes similar to previous stricken policies.

In attempts to create new constitutional speech codes, university administrators can reflect upon and model the Report of the Committee on Freedom of Expression by the University of Chicago. Although the University of Chicago is a private institution, this report presents the ideal university speech code that balances both free speech and anti-discrimination rights at universities. The speech codes begin by stressing the importance of free speech at universities, noting that “universities exist for the sake of free inquiry.”69 It acknowledges the necessity of free speech rights on campus, incorporating Justice Holmes’ concept of the marketplace of ideas. Then, the speech code shifts to discuss constitutional speech restrictions based on content, stating that “the University may restrict expression that violates the law [and] constitutes a genuine threat or harassment.”70 It mentions that discriminatory threats that incite violence can be restricted on campus and result in speaker bans. In doing so, the speech code directly applies criteria from Brandenburg’s imminent lawless action test and Black’s true threat doctrine.

Furthermore, unlike free speech zone codes, the University of Chicago’s speech code includes time and place regulations without violating First or Fourteenth Amendment rights. The code states that “the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University.”71 Once again, the policy borrows the language from the Perry and Rosenberger holdings to create constitutional speech regulations on campus based on location and time – it does not promote establishing a sole location on campus for speech activities. In conclusion, the University of Chicago’s speech code effectively balances free speech and anti-discrimination rights with constitutional content-based 69

Report of the Committee on Free Expression, Uɴɪᴠᴇʀsɪᴛʏ ᴏꜰ Cʜɪᴄᴀɢᴏ (19 February 2018), https://provost.uchicago.edu/sites/default/files/documents/reports/FOECommitteeReport.p df 70 Id. 71 Id.

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UCLA UNDERGRADUATE LAW JOURNAL restrictions on speech and political speech protections. It can serve as an effective guide for drafting future speech codes at other American universities.

Conclusion Conflicting university speech codes are often distorted by overly favoring either free speech or anti-discrimination rights. This impacts administrative decisions to allow controversial speakers on college campuses. University codes like bias reporting systems favor anti-discrimination and enforce stringent speech restrictions; in some cases, administrators rely on these codes to censor the content of constitutionally-protected political speech that is biased, but nonthreatening, therefore violating First Amendment free speech protections. In contrast, codes on public forums and free speech zones only impose limited time, place, and manner restrictions on speech, favoring free speech with limited speech regulations. Administrators then apply these public forum and free speech codes to allow controversial speakers on campus, allowing speakers to express anything on campus, including discriminatory threats against university students. These divergent administrative outcomes for controversial speaker events stem from whether or not speech codes include content-based regulations on speech. Bias reporting systems favor anti-discrimination and heavily regulate the content of biased speech, whereas codes that regulate public forums and establish free speech zones avoid content-based regulations.

Overall, the wording of codes on bias reporting systems, public forum, and free speech zones fails to balance free speech and anti-discrimination rights – this impacts the administrative application of speech codes to regulate controversial speaker events.

The selection of public universities examined in this article and the resulting findings indicate that a serious revision of these codes is warranted in order to ensure their compliance with the First and Fourteenth Amendments. As an extension of the government, public universities are bound to enforce varying First Amendment protections. Additionally, anti-discrimination is a highly specific right outlined by the Fourteenth Amendment and statutes like Title IX and VI. Some universities view anti-discrimination as less important than free

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FREE SPEECH VERSUS PREVENTING DISCRIMINATORY SPEECH: APPLYING UNIVERSITY SPEECH CODES TO CONTROVERSIAL SPEAKERS speech. Certain speech codes, like public forum and free speech zones, reiterate broad free speech protections without any consideration of anti-discrimination rights. However, with increasing diversity on college campuses, administrators need to draft and enforce policies that adequately balance free speech and antidiscrimination rights. Therefore, administrators must restrict some forms of expression on campus by adopting certain constitutional content-based speech regulations outlined in Supreme Court doctrines, lower court cases, and federal laws. Ultimately, university speech codes can balance free speech and antidiscrimination only by preventing discriminatory speech that incites violence while protecting the free expression of political ideas on campus.

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UCLA UNDERGRADUATE LAW JOURNAL Amanda Lee*

Analyzing Strict Scrutiny and Race-Conscious Admissions Policies in Higher Education ABSTRACT. Race-conscious admissions policies for institutions of higher education have remained a divisive issue in society and raise a critical question: Does the use of racial preferences in university admissions violate the Equal Protection Clause of the Fourteenth Amendment? The Supreme Court has already answered this question, yet its ruling remains controversial. Strict scrutiny is the standard of review used by the Court to determine the constitutionality of race-conscious admissions practices. For higher education affirmative action cases, strict scrutiny has been applied by the Court in a lenient fashion. This leniency has undermined the purpose of this exacting standard.

The two prongs of strict scrutiny consist of the Court determining whether the state’s interest for a policy is “compelling” and if the means is “narrowly tailored” to this interest. As of today, the “educational benefits of diversity” are recognized as a compelling state interest by the Court. Secondly, so long as considering race in the admissions process is “narrowly tailored” to the interest of diversity, it is not in violation of the Equal Protection Clause. This article argues that strict scrutiny requires a more stringent application. It demonstrates how the Court has erred in its use of strict scrutiny, and consequently, in its decisions regarding higher education affirmative action programs. Under an adequately theorized and better-articulated strict scrutiny review, raceconscious admissions policies constitute a violation of the Equal Protection Clause.

*Amanda Lee is a graduating senior at UCLA with a major in Anthropology and a minor in History.

Amanda plans to attend law school in the near future with a particular interest in international law, counterintelligence, and national security. She hopes to one day pursue a legal career with the CIA.

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION Introduction Over forty years ago, in Regents of University of California v. Bakke, the Supreme Court had to decide for the first time if the use of racial preferences in university admissions violated the Equal Protection Clause of the Fourteenth Amendment. Justice Powell declared that strict scrutiny was the proper judicial standard to review such a case and issued a significant ruling by affirming that a university’s goal of obtaining the educational benefits of diversity was a compelling state interest. He also determined that the use of race in admissions was permissible, given that the admissions procedure was narrowly tailored to further the compelling interest of diversity. This ruling set the stage for subsequent cases that tackled the constitutionality of race-conscious admissions programs. Cases such as Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v.

University of Texas at Austin reaffirmed that the consideration of race in admissions was not a violation of the Equal Protection Clause, given that the admissions process was narrowly tailored. Nevertheless, even with the Court’s past rulings, the question of how colleges should acquire a rich pool of diverse students continues to be a subject of national debate.

The larger conversation regarding affirmative action tends to center around the moral arguments of social justice. Many intellectuals advance their position on race-conscious admissions procedures by weighing the advantages and the disadvantages of diversity in the classroom, providing an analysis of historical oppression, or emphasizing the current structures of inequality. These discussions are meaningful, but they ignore the actual legal methods and interpretations of the Court. Despite having ruled on the issue, the Supreme Court stands on tenuous legal ground in its decision to uphold higher education affirmative action policies. Strict scrutiny, the form of judicial review that the Court uses to evaluate race-conscious admissions, has not been “strict” enough. Instead, the Court has adopted a relaxed version of this standard when assessing the admissions policies of universities.

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UCLA UNDERGRADUATE LAW JOURNAL This article first seeks to demonstrate that the tiers of strict scrutiny are undertheorized1 and in need of further clarification for the Court to use it consistently. Section I briefly traces the development of the three prominent standards of review that are currently used to determine constitutional law. In particular, it will suggest that the Court develop a more precise standard of strict scrutiny by clarifying ambiguous language and better distinguishing it from intermediate scrutiny. Moreover, the Court must succeed in balancing flexibility and fatality for this standard of review to be the most effective. Section II will explore the first prong of strict scrutiny: the compelling interest test. An account of the Supreme Court’s reasoning for allowing the benefits of diversity to pass as a compelling state interest is provided, and will exhibit how this interpretation is too lenient according to precedent. Furthermore, it will recommend objective questions the Court can ask when judging if a state interest is “compelling.”

Section III will address the second prong of strict scrutiny: proving a narrowly tailored means. It will first delineate the past standards of “narrowly tailored” in the context of racial statutes. Following this, it will propose that universities must prove that the use of race in the admissions process is the only feasible method of achieving the interest of diversity. Even if we were to give credence to the Court’s decision that the benefits of a diverse student body serve a compelling state interest, universities have not exhausted race-neutral alternatives. If the Court does not require colleges to trial all race-neutral methods, race-conscious admissions policies cannot be considered narrowly tailored. Thus, this article concludes that the Court should reconsider raceconscious admissions policies under guidelines more stringent in order to comply with the true nature of strict scrutiny. Under a more uniform and welltheorized strict scrutiny standard, considering race in admissions would not survive this level of judicial review.

1

Roy G. Spece, Jr., David Yokum, Scrutinizing Strict Scrutiny, 40 Vt. L. Rev. 285 (2015).

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION I. Clarifying the Strict Scrutiny Standard The fundamental question that the Supreme Court seeks to answer in higher education affirmative action cases is whether universities violate the Equal Protection Clause of the Fourteenth Amendment when they consider an applicant’s race. Plaintiffs who sue universities over affirmative action policies allege the denial of equal protection under the law because admissions committees discriminate against them on the grounds of race. To understand the problem with the Court's rulings which allow affirmative action policies to stand, we must take a closer examination at one of the central concepts underlying the Court's reasoning: strict scrutiny.

A brief analysis of the three forms of judicial review employed by the Supreme Court in constitutional law is necessary to understand the current issues with strict scrutiny. In 1923, in U.S v. Carolene Products Co., the Court laid out the rational basis test, which is currently the most relaxed level of review. Congress penalized Carolene Products Co. for interstate shipping of milk that they formulated in a way prohibited by the Filled Milk Act. The Court sided with Congress because there was a “rational basis” that connected the statute and the goal of protecting public health.2 Therefore, under the rational basis test, a legislative classification must be “rationally related” to a “legitimate” governmental interest.3 In a famous footnote, Justice Stone wrote that there might be a “narrower scope” in judging legislation that conflicts with the Constitution and that statutes pertaining to racial minorities may require a “more searching judicial inquiry.”4 Justine Stone’s proposal of a more rigorous standard of review eventually manifested into the strict scrutiny test. In Korematsu v. United States, the Court expressed that strict scrutiny is the appropriate standard for policies that distinguish people based on race. The first time that the Court fully utilized this test in a racial classification case was in Regents of University of California v.

2

U.S v. Carolene Products Co., 304 U.S. 144 (1938) Thomas B. Nachbar, The Rationality of Rational Basis Review. 102 VA. L. Rev. 1627 (2016).

4 U.S v. Carolene Products Co. at 155 n.4.

3

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UCLA UNDERGRADUATE LAW JOURNAL Bakke. Allan Bakke, a white male, sued the University of California Davis Medical School after he was denied admission. He claimed that the admissions process discriminated against him on the basis of race. In this affirmative action case, the Court asserted that the policies under review must be “precisely tailored” to serve a “compelling” government interest.5 The third level of judicial review was articulated in the 1976 case Craig v.

Boren and is known as the intermediate scrutiny test.6 An Oklahoma law permitted women over the age of 18 to purchase non-intoxicating 3.2% beer, whereas men needed to be 21 years of age. Curtis Craig, who was under 21, brought a lawsuit on the basis that the statute denied all males between 18 and 21 years old equal protection of the law. The Court decided that gender was not a suspect classification but that it required a “heightened” level of judicial review. As a result, the Court formulated an intermediate level of review for gender and stated that, "classifications by gender must serve ‘important’ governmental objectives, and must be ‘substantially related’ to the achievement of those objectives."7 In his dissenting opinion, Justice Rehnquist opposed the creation of an intermediate standard of review, as the Court had already experienced “enough difficulty” with the rational basis test and stricter levels of scrutiny.8 He also contended that the description of intermediate scrutiny produced an arbitrary standard that cannot be easily administered: “Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at ‘important’ objectives or, whether the relationship to those objectives is ‘substantial’ enough.”9 Although Justice Rehnquist was explicitly questioning the legitimacy of intermediate scrutiny, he pointed out a broader complication with all judicial standards of review—vague language and a lack of theoretical foundations result 5

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) Craig v. Boren, 429 U.S. 190 (1976) 7 Id at 197 8 Id at 429.

9 Id. at 221.

6

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION in an inconsistent process that can distort decision making. For example, the Court has not made a genuine distinction between an “important” government objective and a “compelling” one. Existing standards of review also fail to inform the ways justices determine a means that is “substantially” related to the interest as opposed to a means that is “narrowly tailored.” Without a more explicit description of how the Court discriminates between strict and intermediate scrutiny, it is challenging to perform strict scrutiny analysis with uniformity, and thus it cannot validate affirmative action policies.

While it is beyond the scope of this article to redefine each level of judicial review, I argue that the adoption of a stronger framework for conceptualizing strict scrutiny would solve some of the problems associated with the current legal permissibility of affirmative action policies. Clarifying and strengthening the meaning of strict scrutiny would enable this form of review to be applied to cases concerning racial classification in a more determinate way. It would also produce a clearer distinction between intermediate scrutiny and strict scrutiny.

Specifically, under strict scrutiny, the state must demonstrate that its interest is beyond the “important” designation required for intermediate scrutiny and that the means used to realize this interest is more than “substantially related.”

Using this logic, the Court should presume that for the state’s interest to go beyond “important,” it should hold some form of urgency. In other words, the Court must interpret a compelling interest as something that is “necessary,” or “pressing” to the state.10 Furthermore, the means that the state uses to fulfill this interest should be imperative to the goal. Essentially, the Court should require proof that the methods employed are the only suitable ways to achieve the goal and that no other alternatives are feasible at that time. With this interpretation of strict scrutiny, the Court can feel confident that the standard is rigorous enough while also taking into consideration the unique facts and context of the case.

10

See Korematsu v. United States, 323 U.S. 214 (1944) at 216. In Grutter and Fisher (I), Justice Thomas also uses "pressing public necessity” and “compelling interest” interchangeably.

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UCLA UNDERGRADUATE LAW JOURNAL While strict scrutiny requires a heavy burden of justification, there needs to be a delicate balance between ensuring strict scrutiny is flexible enough to justify its use and also sufficiently rigid in its examination in order to protect the rights of individuals. Scholar of constitutional law, Gerald Gunther, famously wrote that strict scrutiny was “strict in theory but fatal in fact” because laws were rarely able to pass under this level of review.11 However, in race-based affirmative action cases, the Court has attempted to dispel this notion of strict scrutiny. For instance, in Bakke, Justice Powell referred to Gunther’s quote and asserted “our review under the Fourteenth Amendment should be strict—not strict in theory and fatal in fact.”12 In Adarand Constructors Inc. v. Pena, Justice O’Connor stated that the concept of strict scrutiny as strict in theory but fatal in fact was “simply not true.” She opined that racial classifications acting in the interest of countering the effects of racial discrimination were not automatically invalid.13 Later in Grutter, Justice O’Connor reemphasized her previous statement and added that “context matters” when reviewing racial classifications under the Equal Protection Clause.14 Finally, in Fisher v. Texas, Justice Kennedy endorsed the views in Adarand and Grutter that strict scrutiny was not to be fatal. However, it must also not be “strict in theory but feeble in fact.”15 These comments from the Court illustrate how strict scrutiny is still in the process of being defined. If the Court is too flexible in its interpretation of what strict scrutiny entails, then this standard of review loses its value in discerning constitutional law. On the other hand, if strict scrutiny is too severe, the standard can also be deemed useless or ineffective. Therefore, the real concern is how to apply strict scrutiny appropriately for Equal Protection matters by obtaining the equilibrium of remaining demanding without becoming fatal. For cases concerning race-conscious admissions, the Court has not yet successfully

11

Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 795 (2006).

12 Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) at page 324 n. 34 13 Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) at 202.

14 Grutter v. Bollinger, 539 U.S. 306 (2003) at 327.

15 Fisher v. Univ. of TX at Austin, 570 U.S. ___ (2013).

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION found this balance. Its evaluations have erred on the side of leniency and have thus contradicted the essence of strict scrutiny.

II. The Benefits of Diversity as a Compelling State Interest In Regents of University of California v. Bakke, the Court had to decide for the first time whether a university had a compelling interest in pursuing the benefits of diversity. In 1978, the University of California Davis Medical School admissions program consisted of two separate programs that each had their respective committees. The “special admissions program” reviewed applicants that were part of a minority group and considered themselves “economically or educationally disadvantaged,” while the regular committee evaluated all other applicants.16 Allan Bakke, a white male who applied to the medical school through the regular admissions track, was denied acceptance. In response, he sued the college claiming that its admissions policies violated his rights under the Equal Protection Clause of the Fourteenth Amendment. He argued that his race disadvantaged him in the application process since he was competing with other students with a preferred racial background. The burden of proof was set upon the University to prove its admissions policy served a compelling state interest.

UC Davis Medical School provided four reasons to justify the use of race in the configuration of a separate admissions program: (i) Reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession, (ii) countering the effects of societal discrimination, (iii) increasing the number of physicians who will practice in communities currently underserved, and (iv) obtaining the educational benefits that flow from an ethnically diverse student body.17 Justice Powell found the first three objectives presented by the University to be insufficient as a compelling state interest.

However, he determined that the final intent of “obtaining the educational benefits that flow from an ethnically diverse student body” met the requirements 16 17

Bakke 438 U.S. 265 (1978) at 306.

Bakke 438 U.S. 265 (1978) at 306.

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UCLA UNDERGRADUATE LAW JOURNAL under strict scrutiny. He stated that this was “clearly a constitutionally permissible goal” according to the First Amendment and the right to academic freedom, declaring that the four essential freedoms of a University include “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”18 He also cited Sweatt v. Painter to demonstrate that diversity enriched the student’s education and equipped future professionals for the diverse environment they will encounter once entering their field. 19 Although these are reasonable arguments for the educational benefits of diversity, the ruling in Bakke did not indicate why the benefits obtained from diversity constitute a “compelling” state interest and, moreover, why it is considered more compelling than the other interests.

After Bakke, the Court reviewed university affirmative action plans again in 1996, with Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, a white female, Barbara Grutter, applied to the University of Michigan Law School and was rejected. She then sued the school alleging that the admissions committee discriminated against her because of her race. In Gratz, Jennifer Gratz and Patrick Hamacher, both Caucasian, were rejected from the University of Michigan College of Literature, Science, and the Arts (LSA). Gratz and Hamacher filed a class action suit against the University. Similar to Grutter, they declared that consideration of race in the admissions procedure was discriminatory and violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

Comparable to Justice Powell’s weak application of strict scrutiny, the Court in Grutter and Gratz failed to explain how the benefits of diversity were “compelling” as opposed to simply an “important” objective. For example, the Court in Grutter evaluated expert studies presented to them by the defendant.

This research found that a diverse student body prepares students for a diverse workforce, citizenship, and yields engaging classroom discussions that are more “enlightening and interesting.”20 Experts also revealed that students entering a

18

Id. (Justice Powell quoting Sweezy v. New Hampshire 354 U.S 234, 263 (1957)) Id. at 313.

20 Grutter v. Bollinger, 539 U.S. 306 (2003) at 330.

19

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION global marketplace would require skills that they can only learn through exposure to “widely diverse people, cultures, ideas, and viewpoints.”21 Taking these benefits into account and citing Bakke as precedent, the Court concluded that the educational benefits of diversity were a compelling state interest. The Court came to the same conclusion in Gratz. Although it is laudable for universities to pursue such educational benefits, the Court did not elucidate why this interest is sufficiently “compelling” to pass under strict scrutiny.

Furthermore, the Court did not explain why it diverged from its much stricter standard in the past.

For instance, in previous strict scrutiny cases that involved race-based policies, the Court had to decide whether remedying societal discrimination could be considered a compelling state interest. Despite such a commendable goal, the Court has repeatedly declared that rectifying past discrimination does not meet the standard of a compelling state interest. Justice Powell struck down UC Davis Medical School’s interest in remedying past discrimination because it advantaged “perceived” victims and disadvantaged individuals who held no personal responsibility for past discrimination.22 In City of Richmond v. J.A Croson Co., the Court upheld this view and determined that race-based measures could not justify furthering remedial goals without a strong basis of evidence. 23 In Wygant v. Jackson Board of Education, the Court determined that race-based layoffs by public employers did not pass under strict scrutiny because “societal discrimination is insufficient and over expansive.”24 As the aforementioned cases illustrate, remedying the effects of historical and ongoing social discrimination did not pass as a compelling state interest under strict scrutiny.

It is therefore inconsistent that the educational benefits of diversity in the

21

Id at 308.

Bakke 438 U.S. 265 (1978). at 310 (“To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination.”)

23 City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) at III A. 24 Wygant v. Jackson Bd. of Educ. 476 U.S at 276 22

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UCLA UNDERGRADUATE LAW JOURNAL classroom are considered compelling enough by the Court to pass such an exacting judicial test.

If the Court were to apply strict scrutiny thoroughly, it would have to examine how the educational benefits are “pressing” in nature and why such benefits are critical for the state to pursue. To do this, the standard of a compelling interest must surpass merely being “important” to the state. Since the interest of educational diversity is not unique to a specific state, a question the Court could ask is whether an overwhelming majority of states in the nation consider this interest compelling.25 This suggestion was proposed in Justice Thomas’ Grutter dissent when commenting on how the Court could adequately determine a compelling interest. Since some states have outright banned affirmative action policies in public education, and not every institution of higher education within a state considers race in their admissions, the benefits of diversity are apparently not “compelling.” Other questions the Court could inquire about include whether the interest is critical to the way the state functions or if this interest has any significance to the state’s public security.

Suggestions such as these are given to emphasize that for a state interest to be “compelling,” it must be paramount to the state. In no way do the benefits of diversity meet this standard of necessity.

It is evident the Court expanded the scope of strict scrutiny to encompass a broader range of interests that may meet this judicial standard. The task for the universities was not to merely prove that benefits from diversity existed, but that these benefits were so vital that the universities needed to take the steps to attain it. The universities failed to meet this challenge, yet the Court still viewed their reasoning as acceptable. Therefore, the Court’s rulings suggest it adopted a softer version of strict scrutiny. If the Court were to use a more stringent criterion, one that adheres more precisely to the nature of strict scrutiny and its purpose, then the educational benefits of diversity as a state interest would be considered insufficiently “compelling” under this standard of review.

25

Grutter v. Bollinger, 539 U.S. 306 (2003) at 357 (Justice Thomas Dissent)

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION III. Narrowly Tailored Admissions Policies Even if a university was able to prove that the benefits from diversity are necessary or pressing interests, they must also satisfy the second prong of strict scrutiny: the means to achieve the benefits of diversity must be “narrowly tailored.” The Court has used the narrowly tailored test in cases involving the Equal Protection Clause since 1964.26 Before the Court established this precise term, they subjected race-based statutes to a rigid standard of review where the state had to indicate a necessity for the law in question. For example, in McLaughlin v. Florida the Court rejected a state statute that prohibited an unmarried black and white couple from habitually living in and occupying the same room in the night-time. Justice White pronounced that such a law “bears a heavy burden of justification” and that the Court could only uphold it if the law was “necessary, and not merely rationally related, to the accomplishment of a permissible state policy.”27 In Loving v. Virginia, the Court struck down antimiscegenation state laws that banned interracial marriage. Justice Warren maintained that to uphold laws based on racial classifications, they must be shown to be “necessary to the accomplishment of some permissible state objective.”28 Thus, the Court’s standard for a means to pass under strict scrutiny was for the statute or policy to be deemed a necessity.

Further specification of a narrowly tailored means was expressed in Wygant v. Jackson Board of Education. In a footnote, Justice Powell extended the criteria of “narrowly tailored” by noting the term had acquired a secondary meaning that requires “consideration of whether lawful alternative and less restrictive means could have been used...the classification at issue must ‘fit’ with greater precision than any alternative means.”29 In Richmond v. J.A, the Court supported this expanded interpretation. Justice Kennedy noted that strict

26

Stephen A. Siegel, The Origin of the Compelling Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 361 (2006).

27 McLaughlin v. Florida, 379 U.S 184 at 196.

28 Loving v. Virginia, 388 U.S. 1 (1967) at 11.

29 Wygant v. Jackson Bd. of Educ. 476 U.S at 284 n. 6.

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UCLA UNDERGRADUATE LAW JOURNAL scrutiny operated in a way that strongly promoted race-neutral means because racial classifications, even narrowly tailored, should be of last resort.30 Given the Court’s history of defining the “narrowly tailored” test, the Court should remain consistent and continue to ensure that the means chosen by a state to advance its compelling interest should suit the goal so closely that the possibility for unlawful racial discrimination is little to none.31 Explicitly, the Court should demand universities demonstrate that using race as a factor in admissions is i) necessary to achieve the goal of diversity and that ii) no other available policy could accomplish this objective. However, the Court has allowed universities to pass the narrowly tailored test without meeting these conditions.

The two major Supreme Court cases where a race-conscious admissions program passed under strict scrutiny as a “narrowly tailored” means are Grutter v. Bollinger and Fisher v. University of Texas at Austin. In these cases, the Court allowed schools to use race in admissions decisions without requiring a full burden of proof that the affirmative action plans to promote diversity were constitutional. Rather, they showed an unreasonable amount of deference to the university’s judgment that its race-conscious policies are the most optimal means. As a result, the Court decided not to adhere to the proper level of strict scrutiny, and it erred in its application of this standard to determine a narrowly tailored admissions policy.

In Grutter v. Bollinger, Justice O’Connor was extremely lenient regarding the extended definition of narrow tailoring that Justice Powell set forth. She stated that narrow tailoring does not require the “exhaustion of every conceivable race-neutral alternative” and that a university should not have to choose between its academic standards for excellence and offering opportunities to all racial groups.32 Rather than requesting the university prove the failure or inadequacy of the race-neutral means it trialed, the Court was satisfied with the law school’s consideration of race-neutral alternatives and gave the university

30

City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) Justice Kennedy concurring in part and concurring in the judgment.

31 City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).

32 Grutter v. Bollinger, 539 U.S. 306 (2003) at 309.

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION the benefit of the doubt.33 In Justice Kennedy’s dissent, he pointed out that this type of deference to the university is an “abandonment” of strict scrutiny and that if this searching standard were properly employed, the university would be forced to “seriously explore” the alternatives.34 Later in Fisher v. Univ. of Texas at Austin, the Supreme Court affirmed the precedent set by Grutter that exhausting all race-neutral options is not obligatory. Arguably, the University of Texas provided more thorough documentation of its research efforts than the Michigan School of Law did in Grutter. However, based on the Court’s prior assertions of a narrowly tailored means, the Court erred in both of these cases by not forcing the universities in question to assess all race-neutral alternatives. For instance, lowering academic standards such as standardized test scores and grade point averages would be one method to assemble a more diverse class. The Court believed this was not a necessary approach to trial since the university should not have to sacrifice its reputation of academic excellence.35 Some justices questioned the Court’s decision in allowing universities to maintain their academic reputations before seriously attempting to implement a race-neutral means that could produce the diverse student body they seek. In Grutter, Justice Scalia was skeptical of the university’s refusal to participate in lowering admissions standards. He questioned whether the University of Michigan Law had an authentic desire for diversity if their admissions standards inherently exclude minorities in the process.36 Justice Thomas made similar remarks about the law school choosing to maintain an admissions system that results in racially disproportionate outcomes. He argued it is the university's conscious choice to set high academic expectations for its applicants and “racial

33

Grutter v. Bollinger, 539 U.S. 306 (2003) at 343. (“We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.”)

34 Grutter v. Bollinger, 539 U.S. 306 (2003) at 394 (Justice Kennedy dissenting).

35 Fisher v. University of Texas at Austin, 579 U.S. ___ (2016) 36 Grutter v. Bollinger, 539 U.S. 306 (2003) at 347 (Justice Scalia concurring in part and dissenting in part).

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UCLA UNDERGRADUATE LAW JOURNAL discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.”37 If the Court does not stipulate the exhaustion of race-neutral means as a condition to pass strict scrutiny, then it is not adhering to the stringent standard this level of review requires. The Court also does not offer a convincing explanation for why it made such exceptions. According to the past articulations of strict scrutiny, determining a narrowly tailored means should require the examination of whether this means is a better fit than all available alternatives.

If universities do not have to trial all race-neutral options, there is no way to accurately assess if their means is, in fact, necessary to obtain the benefits of diversity. Therefore, the Court should ensure that all race-neutral methods be implemented and assessed by universities before they begin to undertake raceconscious admissions policies.

In conclusion, if the Court had accurately employed strict scrutiny, the admissions programs in Grutter v. Bollinger and Fisher v. Texas would not have passed as a narrowly tailored means. It is possible that if the Court had held them to the correct standard, that universities could have proven that no race-neutral alternatives achieved a diverse student body better than race-conscious admissions policies. Still, the criticisms discussed here demonstrate that the Court repeatedly erred by being too lenient in both prongs of the strict scrutiny test. If the Court were to perform strict scrutiny review consistently and acknowledge that the benefits of diversity do not pass as a compelling interest in the first place, the question of whether race-conscious admissions are narrowly tailored becomes void. However, it is a meaningful discussion to set precise standards for the narrowly tailored prong of strict scrutiny so that the Court may perform this level of review with stringency and accuracy in future cases.

Conclusion Strict scrutiny requires the uniformity of being “strict” in every situation.

The vague facets of strict scrutiny—“compelling interest” and “narrowly 37

Grutter v. Bollinger, 539 U.S. 306 (2003) at 350 (Thomas concurring in part and dissenting in part).

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ANALYZING STRICT SCRUTINY AND RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION tailored”—need to be further clarified in order for the Supreme Court to promulgate a coherent, consistent standard for restricting or allowing certain affirmative action policies. Strict scrutiny is the most demanding standard, but the Court has failed to enforce it as such, often blurring the distinction between intermediate and strict scrutiny. It should not be a concern that laws under strict scrutiny rarely pass this standard of review since cases that call for strict scrutiny pertain to very questionable statutes or policies which threaten constitutional rights and equality. If there is leniency in the Court because of the perceived benign nature of the discrimination, then the Court is no longer properly applying strict scrutiny.

In Grutter, the Court predicted race-conscious admissions would no longer be necessary to further the compelling interest of diversity 25 years after the case.38 The reasoning behind this prediction was that 25 years after Bakke, minority applicants became increasingly more competitive. Therefore, the Court expects that 25 years after Grutter, universities will no longer have to turn to racial preferences because the achievement gap will have sufficiently closed.

If the Court genuinely prefers race-neutral means over race-conscious policies, then it should not need to wait for affirmative action to become obsolete.

Preferably, the Court needs to address the flawed way it has applied strict scrutiny to such cases. If the Court adheres to strict scrutiny appropriately, the interest of educational benefits from a diverse student body should not pass as a compelling state interest, since there is nothing inherently “pressing” or urgent about this interest. The Court has also failed to require universities to trial all race-neutral options, so race-conscious admissions policies are not narrowly tailored to pursue the objective of a diverse student body. Should the Supreme Court have the opportunity to rule on this issue again, it should re-examine precedents and determine that under strict scrutiny review, using race as a

38

Id. at 310

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UCLA UNDERGRADUATE LAW JOURNAL factor in higher education admissions decisions is unconstitutional and a violation of the Equal Protection Clause.39

39

It is possible that the Supreme Court will have to decide the fate of race-conscious admissions policies in the near future. In 2014, the Students for Fair Admissions (SFFA) sued and challenged Harvard’s undergraduate admissions policies. SFFA is claiming Harvard’s consideration of an applicant’s race has demonstrated a pattern of discrimination against Asian Americans.

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UCLA UNDERGRADUATE LAW JOURNAL Kyle Quon*

The Second Amendment Outside the Home: The Judiciary and Public Carry in the PostHeller Era ABSTRACT. In 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment conveyed an individual right to keep and bear arms in the home, transforming the prior interpretation that protected states’ rights to keep and bear arms against the federal government. In the aftermath of the ruling, lower courts were left with the task of determining the extent of Second Amendment protection outside of the home. In doing so, the Ninth Circuit Court of Appeals ruled that the Second Amendment protects a right to openly carry a firearm in public but no right to carry a concealed firearm. In this article, I discuss how these Ninth Circuit rulings constitute judicial overreach, infringing on the legislative ability of states to determine open and concealed public carry policies, and failing to account for the present-day attitudinal differences towards firearms. I argue that absent a total prohibition on carrying firearms in public for self-defense or a restriction of this right to a subset of the law-abiding population, lower courts should employ legislative deference with regards to state laws on open or concealed carry policies. Such decisions from the lower courts are an example of rampant judicial activism which ignores the cultural differences between states that have historically yielded divergent firearm policies.

*Kyle Quon is a second-year Political Science major at UCLA. His academic interests include constitutional law, corporate governance, and financial regulation. He plans to attend law school after graduation.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction The prominence of firearms in American culture has existed since early American colonial history. Firearms played a crucial role in the founding of the United States, with the traditional American narrative painting firearms as instruments of freedom utilized by American colonists to throw off British rule.

Influenced by English common law, American tradition and history supported a right to keep and bear arms that became codified with the Second Amendment shortly after the ratification of the U.S. Constitution.1 While previous Supreme Court decisions interpreted the Second Amendment as a collective right, protecting states’ rights to retain arms against the national government, the Supreme Court recently turned that meaning on its head and instead bestowed an individual right to bear firearms for self-defense in District of Columbia v.

Heller. This decision has transformed the modern legal conversation surrounding the Second Amendment, shifting the debate from a collective versus individual right to the extent that the Second Amendment safeguards an individual right.2 The emergence of a new area of constitutional jurisprudence, along with the lack of guidance from the Supreme Court in the aftermath of the Heller decision, has resulted in confusion in the lower courts over the approaches that should be adopted with respect to Second Amendment challenges. In particular, the lack of response from the Court in regard to gun rights outside the home has forced the lower courts to discern the types of public carry that are protected by the Second Amendment. This has resulted in two Ninth Circuit Court of Appeals rulings which held that the Second Amendment protects the right to bear a firearm openly in public for self-defense, but no right to carry a concealed firearm in public. These two rulings, which outline the individual right to keep and bear firearms in public, are not uniformly applicable across the entirety of the United States. Public carry has different meanings in different regions of the 1

See Rudolf Lamy, The Influence of History upon a Plain Text Reading of the Second Amendment to the Constitution of the United States, 219 (2007), https://www.jstor.org/stable/25470010.

2 See Emma Long, Why So Silent? The Supreme Court and the Second Amendment Debate After DC v. Heller, 10 (2017), http://journals.openedition.org/ejas/11874.

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA country, and the Ninth Circuit failed to demonstrate awareness of these differences in its rulings regarding Second Amendment rights outside the home.

In a nation with varying degrees of gun control, the extent of Second Amendment protection outside the home in the post-Heller era will determine the direction of public carry regulation within the United States.

This article argues that the lower courts should not bestow a specific right to public open or concealed carry. Instead, the courts should employ legislative deference in regard to methods of public carry by employing the same legislative deference they grant to states’ firearm licensing policies. The states should be the entities empowered to determine the scope of the ability to carry a firearm in public. Specifically, this article focuses on the Ninth Circuit Court of Appeals’ decisions in Peruta v. County of San Diego and Young v. Hawaii and argues that conveying a right to openly carry a firearm outside the home for selfdefense and no right to carry a concealed firearm outside the home for the same purpose, ignores the historical differences in firearm regulation that exist within varying regions of the United States. Part I discusses the history surrounding the interpretation of the Second Amendment before and after the landmark decision of District of Columbia v. Heller. Part II then discusses the types of public carry adopted by states and the regulations states have enacted for both open and concealed carry, along with the criteria the lower federal courts have established when ruling on the unconstitutionality of a state’s licensing policy.

Part III concludes by highlighting how various regions of the United States have differing cultural values concerning their views on firearms, and concludes that the courts should defer to the states in legislating their own policies on open or concealed carry, based on the same deference they grant states to distribute licenses for firearms.

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UCLA UNDERGRADUATE LAW JOURNAL I. The History of Second Amendment Jurisprudence: A Shift from Collective to Individual Rights A. A Collective Right to Keep and Bear Arms Until the twenty-first century, Second Amendment jurisprudence had a limited history. Throughout the nineteenth and twentieth centuries, the Supreme Court rarely dealt with questions regarding the constitutionality of firearm regulations in the context of the Second Amendment. When the courts did confront the question, they held that the enactment of the Second Amendment was meant to preserve the states’ right to maintain militias for the people’s defense.3 Commonly referred to as a “collective” right4 by previous courts, this interpretation of the Second Amendment meant that most challenges regarding firearm regulations infringing on an individual right to keep and bear arms were rejected.

One of the earliest Supreme Court cases upholding the Second Amendment’s interpretation of a collective right to firearm possession by the states was United States v. Cruikshank. In Cruikshank, the Supreme Court considered whether an individual could be indicted for conspiracy to deprive another individual of their Second Amendment rights.5 The Supreme Court held that the Second Amendment was meant to restrict Congress from infringing upon the states’ collective right to bear arms and subsequently vacated the indictments.6 The Court interpreted the Second Amendment as “one of the amendments that has no other effect than to restrict the powers of the national government” and consequently one that does not protect an individual right to keep and bear firearms.7 The same perspective was upheld in United States v. Miller in 1939. In Miller, the Supreme Court considered whether the National Firearms Act infringed 3

Silveira v. Lockyer, 312 F.3d 1052 (2002) Id, at 1060.

5 See Federal Judicial Center, U.S. v. Cruikshank, https://www.fjc.gov/history/timeline/us-vcruikshank/ (last visited Feb. 2, 2019).

6 United States v. Cruikshank, 92 U.S. 542 (1876).

7 Id, at 553.

4

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA upon an individual’s Second Amendment right to keep and bear arms.8 The Supreme Court upheld the National Firearms Act as constitutional and ruled that individual possession of a firearm did not fall under Second Amendment protection if it did not display a “reasonable relationship to the preservation or efficiency of a well-regulated militia.”9 As one of the most recent cases considering the meaning of the Second Amendment, the Court did not deviate from the prior interpretation in Cruikshank and maintained that the Second Amendment did not grant an individual right to keep and bear arms.

B. The Shift to an Individual Right to Keep and Bear Arms The right to keep and bear arms as a collective right began to be called into question in the 1980s by conservative academics. These scholars argued that the meaning of the word “militia” in the prefatory clause of the Second Amendment is not defined as a separate state-created militia, but rather that “militia” refers to the entirety of the law-abiding population and their individually-possessed firearms.10 This branch of legal thought eventually entered into the political consciousness surrounding the Second Amendment, as seen in a 1982 Congressional report which argued that the Second Amendment bestowed an individual right to bear arms when it was enacted.11 The growing popularity of an individual rights model grew into the twenty-first century, culminating into a judicial circuit split between Silveira v. Lockyer and United States v. Emerson. While the former decision maintained the Second Amendment’s collective rights meaning,12 the latter ruled that the Second

8

United States v. Miller, 307 U.S. 174 (1939).

Id, at 178.

10 See Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Michigan L. Rev. 217 (1983).

11 See Staff of the Subcomm. on the Const., Senate Comm. on the Judiciary, 97th Cong., The Right to Keep and Bear Arms (Comm. Print 1982).

12 Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).

9

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UCLA UNDERGRADUATE LAW JOURNAL Amendment conveyed an individual right to keep and bear firearms for the first time in American judicial history.13 The long-standing interpretation of a collective right changed radically eleven years ago with the Supreme Court’s ruling in District of Columbia v.

Heller. The Court was asked to determine if the District of Columbia’s ban on handgun possession and requirement that firearms within the home be bound by trigger-lock or disassembled violated the Second Amendment. Utilizing a historical analysis of the meaning of the Second Amendment, the Court ruled that the Second Amendment conveyed an individual right to keep and bear firearms for self-defense within the home, unconnected with service in a militia.14 Applying this new definition, the Court determined that the District of Columbia’s ban on handgun possession and rules keeping firearms inoperable or bound by trigger-lock violated the Second Amendment, since these regulations infringed on possession within the home.15 The Court ruled that the core of the Second Amendment protected the right of individuals to keep and bear arms for the lawful purpose of self-defense within the home.16 The Supreme Court then utilized selective incorporation two years later to apply its ruling to the states under the Fourteenth Amendment in McDonald v. City of Chicago, resulting in state governments being held to the same interpretation that they could not infringe upon an individual’s right to keep and bear arms for the purpose of self-defense within the home.17 Despite transforming the meaning of the Second Amendment in Heller, the Supreme Court’s ruling bestowing an individual right was narrow. The Court specifically ruled that the core of Second Amendment protection was vested in the right of individuals to keep and bear arms for self-defense within the home, and did not extend protections outside the home.18 Although the core purpose of the Second Amendment was self-defense, the Court acknowledged that the

13

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).

District of Columbia v. Heller, 554 U.S. 570 (2008).

15 Id, at 571.

16 Id, at 630.

17 McDonald v. City of Chicago, 561 U.S. 742 (2010).

18 District of Columbia v. Heller 554 U.S. 570 (2008).

14

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA new definition of the Second Amendment “is not unlimited” and that it did not convey “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”19 Providing some examples, the Supreme Court specified some regulations that would presumably be ruled as constitutional, including bans on the possession of firearms by felons or the mentally ill, prohibitions on the carrying of firearms in sensitive places such as schools and government buildings, and regulations dictating conditions and qualifications on the commercial sale of arms.20 The Supreme Court also did not address how regulations regarding firearm possession for purposes apart from self-defense should be viewed in light of its ruling in District of Columbia v. Heller. It is worth noting that firearm possession within the United States has never been limited to only self-defense. A brief look at U.S. history shows that individuals have long carried firearms for hunting or recreational purposes. Indeed, around ten million Americans hunted with a firearm in 2016.21 While this article does not discuss rulings regarding the keeping and bearing of firearms for the purpose of hunting or recreation, it is worth acknowledging that not all firearms purchased within the United States are used solely for the purposes of self-defense as discussed in Heller.

Additionally, the Court did not address the Second Amendment’s applicability to firearms utilized for hunting or recreation in Heller and has not yet done so.

II. Second Amendment Rights Outside the Home A. Public Carry Variations and Regulatory Limitations There are only two methods of carrying firearms in the public sphere: open carry or concealed carry. Open carry refers to when an individual has a firearm 19

Id, at 626.

Id, at 626-627.

21 U.S. Dept. of Interior, National Survey of Fishing, Hunting, and Wildlife-Associated Recreation, 85 (2016), https://www.census.gov/content/dam/Census/library/publications/2018/demo/fhw16nat.pdf.

20

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UCLA UNDERGRADUATE LAW JOURNAL on their person which can clearly be seen by a casual observer.22 Concealed carry refers to an individual carrying a firearm that cannot be observed by a passerby.23 Each state has different policies governing open or concealed carry that are catered to the specific needs and desires of their region.24 Every state allows for individuals to publicly carry a firearm, either openly or concealed. Some states allow any individual to freely carry their firearm in public openly with or without the need of a permit or license beforehand, while other states prohibit open carry throughout the state entirely, such as California, New York, and Florida.25 Although some states ban open carry throughout the state, these same states allow concealed carry as an alternative public carrying option, with licensing policies similar to that of open carry.26 No state has abrogated the ability to carry a firearm in public by prohibiting both open and concealed carry. As for how states determine their public firearm carrying policies, this is dependent on the legislative bodies in each respective state. Residents’ opinions and attitudes toward firearm regulations influence the policy perspectives of elected officials.

The diversity in policy regarding the regulation of open or concealed carry stems from unique interests in each respective region.

While the vast majority of firearm regulations dealing with open or concealed carry have been found constitutional in the aftermath of District of Columbia v. Heller, there are exceptions where some of these regulations were declared unconstitutional. These exceptions mirror the ruling that emerged from District of Columbia v. Heller, which found that the District of Columbia’s

22

Cal Pen Code § 26350(a)(1). (“A person is guilty of openly carrying an unloaded handgun when that person carries upon his or her person an exposed and unloaded handgun outside a vehicle”).

23 N.D.C.C § 62.1-04-01. (“A firearm or dangerous weapon is concealed if it is carried in such a manner as to not be discernible by the ordinary observation of a passerby”).

24 To expand on the definitions cited when defining open or concealed carry, it is worth mentioning that there are differing definitions of concealed and open carry within each state.

The aforementioned definitions cited are to provide some context on what some state laws consider as an “open” or “concealed” firearm.

25 See Giffords Law Center, Open Carry, https://lawcenter.giffords.org/gun-laws/policyareas/guns-in-public/open-carry/ (last visited Jan. 20, 2019).

26 See Giffords Law Center, Concealed Carry, https://lawcenter.giffords.org/gun-laws/policyareas/guns-in-public/concealed-carry/ (last visited Jan. 21, 2019).

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA absolute ban on handguns restricted the Second Amendment right to selfdefense and was therefore unconstitutional.27 Lower courts have interpreted this as the threshold for unconstitutional regulations outside the home, meaning that a regulation is deemed unconstitutional if it results in the inability of individuals to exercise self-defense. In subsequent challenges, lower courts have expanded on the definition of an individual’s inability to exercise self-defense.

They have found that there are two circumstances which determine if an open or concealed carry licensing policy outside the home is unconstitutional.

The first circumstance courts consider when determining the constitutionality of a firearm regulation is if the regulation results in a de facto ban on firearm possession outside the home. In Wrenn v. District of Columbia, the District of Columbia Court of Appeals was asked to consider the constitutionality of the District of Columbia’s “good reason” requirement, which requires individuals applying for a concealed carry license to display they had “good reason to fear injury to his or her person or property” or “any other proper reason for carrying a pistol.”28 The courts have long acknowledged that a ban on both methods of public carry is unacceptable and would be ruled unconstitutional. The District of Columbia Court of Appeals found that the District of Columbia’s “good reason” requirement on the issuance of concealed carry licenses violated the Second Amendment because it amounted to a ban on the possession of public firearms by law-abiding citizens.29 Since the District of Columbia also did not allow open carry, concealed carry was the only option for individuals to carry a firearm publicly. As a result, the concealed carry restriction did not pass the first step of the framework for evaluating Second Amendment challenges and was thus declared unconstitutional.

The second circumstance courts take into account when evaluating the constitutionality of a firearm regulation is if firearm ownership is available to the entirety of the law-abiding population. In Young v. Hawaii, the Ninth Circuit

27

District of Columbia v. Heller 554 U.S. 570 (2008).

Wrenn v. District of Columbia 864 F.3d 650 (D.C. Cir. 2017).

29 Id, at 666.

28

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UCLA UNDERGRADUATE LAW JOURNAL Court of Appeals ruled that limiting public firearm permits to a “small and insulated subset of law-abiding citizens” was not permissible under the Second Amendment and was thus unconstitutional.30 Despite the fact that the State of Hawaii did have in existence a public firearm permit process, the majority found that the state’s history of rarely issuing any permit made the process unconstitutional. The court also chose not to further analyze the statute under the Second Amendment framework and ruled it unconstitutional, similar to the reasoning in Wrenn v. District of Columbia. While there has yet to be a uniform standard for the lower courts to employ when evaluating Second Amendment challenges, these two criteria have been present in the majority of state regulations that have been ruled unconstitutional. The courts must not hesitate to rule a state regulation of public carrying of firearms in the public sphere as unconstitutional if these criteria exist in a particular state regulation. In arguing for legislative deference from the courts, these two circumstances are the acceptable justifications for determining that a state’s methods of public carry are unconstitutional.

B. Public, Open, and Concealed Carry Rights As previously discussed, the Supreme Court said nothing about a right to self-defense outside the home in Heller. However, the Court in Heller stated that the core purpose of the Second Amendment’s enactment is for “self-defense,” which is “most acute” inside the home.31 Reviewing these two sections, the lower courts have interpreted that the Court’s ruling implies the right to keep a firearm for self-defense is at its height within the home and must exist outside the home in some less stringent form.32 Therefore, the lower courts have ruled that the Second Amendment does enshrine a right to publicly carry a firearm for self-defense outside the home. The lower courts first considered whether the Second Amendment confers an individual right to keep and bear arms for selfdefense outside the home in United States v. Masciandaro. Judge Niemeyer 30

Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018).

District of Columbia v. Heller 554 U.S. 570 (2008).

32 Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).

31

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA wrote in the opinion for Masciandaro that a plausible reading of District of Columbia v. Heller appears to provide a Second Amendment right to self-defense outside the home in some form, explaining that the Heller definition of the Second Amendment safeguarding an individual right of self-defense must protect against both public and private violence.33 Eventually, the Seventh Circuit Court of Appeals became the first lower court to rule that there was a right to self-defense outside of the home in the case of Moore v. Madigan.34 Specifically, the Seventh Circuit Court of Appeals found that self-defense “is as important outside the home as inside,” indicating that firearms can be possessed outside the home for self-defense.35 While the lower courts still look to the Supreme Court’s ruling as the final authority on questions concerning the Second Amendment, in the absence of a Supreme Court decision on whether Second Amendment conveys a right to carry a firearm in public for self-defense,36 the lower courts have proceeded to assume a Second Amendment right to self-defense outside the home. Beyond a general Second Amendment right to publicly carry a firearm outside the home, no judicial circuit extended a specific Second Amendment right to open or concealed carry.

However, this changed with two rulings in 2016 and 2018 from the Ninth Circuit Court of Appeals.

The first case in 2016 determined that concealed carry outside the home was not protected by the Second Amendment. In Peruta v. County of San Diego, the Ninth Circuit ruled that the Second Amendment did not protect the right of an individual to carry a concealed firearm in public due to the lack of constitutional protections on concealed carry.37 The court’s reason for extending this right stems primarily from the historical approach taken in District of Columbia v. Heller. In Heller, the Court reviewed historical interpretations of the Second Amendment at various points in American 33

United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).

35 Id, 942.

36 United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).

37 Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016).

34

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UCLA UNDERGRADUATE LAW JOURNAL history. It found that early eighteenth-century state constitutions, nineteenth century state court cases, and commentaries from legal scholars from both time periods all interpreted the Second Amendment as bestowing an individual right to bear arms.38 Peruta v. County of San Diego took the same approach when considering whether the Second Amendment safeguarded a right to concealed carry. Reviewing English legal statutes and nineteenth century American state court cases, the court found that the prohibition of concealed weapons was common both before and after the Second Amendment’s enactment and therefore concealed carry was not protected by the Second Amendment.39 The second case, Young v. Hawaii in 2018, ruled that the Second Amendment enshrined a right to open carry in public for self-defense. Utilizing the same historical approach in Peruta, the court took the case a step further and ruled that the Second Amendment guaranteed a right to openly carry a firearm in public in Young. Based on the Supreme Court’s historical analysis approach, the court found that the core of the Second Amendment grants a right to open carry for the purposes of self-defense.40 The same rationale in Peruta v. County of San Diego was applied by the court when reaching its decision in Young v.

Hawaii, for the court utilized a historical analysis approach which discerned no right to concealed carry in both state and federal case law before and after the enactment of the Second Amendment.41 In sum, Young v. Hawaii ruled that the Second Amendment safeguards the right to bear a firearm openly in public for the purpose of self-defense, whereas Peruta v. County of San Diego found that the Second Amendment did not protect open, public possession of a firearm for the same purpose. While United States v. Masciandaro and Moore v. Madigan acknowledged the existence of a general right of self-defense outside the home in Second Amendment challenges, the Ninth Circuit Court’s decisions went a step too far in dictating which method of public carry is acceptable. The Ninth Circuit Court’s delineation of a right to open carry, but no right to concealed carry, fails to account for the differences 38

District of Columbia v. Heller, 554 U.S. 570 (2008).

Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016).

40 Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018).

41 Id, at 1065.

39

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA in attitudes towards firearms among varying regions of the United States. Rather than conveying a specific right to public carry, the courts should grant appropriate legislative deference.

III. Public Carry Warranting Legislative Deference: Firearm Licensing as a Guide A. Rural and Urban Regional Differences in Attitudes Towards Firearms While the Ninth Circuit Court of Appeals discerned the existence of a Second Amendment right to open carry and no right to concealed carry, this specification of Second Amendment guarantees is a clear display of unrestrained judicial activism. The Ninth Circuit Court’s decisions in these two cases override states’ ability to determine the appropriate method of public carry for their region. The courts must consider that the modern United States is not a solely rural nation that accepts open carry and not concealed carry. The United States encompasses states with both urban and rural regions, areas which have different attitudes toward firearms and firearm regulations. The Second Amendment’s text, much like the rest of the Constitution, has remained the same in a world that has continued to evolve and progress. The United States is not the same today as it was when it enacted the Second Amendment, which must not be viewed in the antiquated perspective the Ninth Circuit had when it ruled in Peruta and Young. The courts should not convey a right to open or concealed carry, and instead should allow state lawmakers to determine which method of public carry best fits their respective areas derived from the concept of states’ rights.

The firearm regulation divide persists in attitudes towards the possession of firearms not just between states, but also between specific regions of the United States. According to the Pew Research Center, 46% of Americans living in rural areas of the United States own a firearm while about 19% of Americans living in

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UCLA UNDERGRADUATE LAW JOURNAL urban areas own one.42 People living in rural or urban areas also have distinct environments that foster different experiences and levels of exposure to firearms, which likely influences their attitudes towards firearm possession.

About 72% of individuals who grew up in a rural region said guns were present in their home, compared to just 39% of individuals who grew up in urban regions.43 As for states themselves, these differences in attitudes towards firearms persist. According to statewide opinion polls, 64% of Californians statewide believe gun regulations should be more strict,44 while only 49% of Texans statewide believe there should be stricter gun regulations.45 These differences run far deeper than beliefs on firearm regulation however, a fact that is highlighted in Joseph Blocher’s article on “Firearm Localism”: It would be hard enough to bridge the gap between these views about guns if they were fully predicated on disagreement about empirics. But the debate is, sometimes for the better and often for the worse, deeper than that. It implicates identity and values, and is therefore hard to resolve by marshaling evidence for one side or the other.46

Declaring that the core of the Second Amendment extends a right to a particular method of public carry, whether open or concealed, threatens to undermine the differences in cultural values that exist between urban and rural areas. Regardless of the quality or quantity of evidence used to support open or concealed carry within either region, the identity and values unique to that region influence residents’ perspectives on firearms. To prescribe a uniform method of public carry across the United States is an overreach of the responsibility the judiciary has in safeguarding Second Amendment rights.

States have the right to enact policy based on their constituents’ needs, for even the American towns of the nineteenth century had stronger gun control

42

See Kim Parker et al., The Demographics of Gun Ownership, Pew Research Center (June 22, 2017), http://www.pewsocialtrends.org/2017/06/22/the-demographics-of-gun-ownership/.

43 See Id. 44 See Public Policy Institute of California, October Statewide Survey 2018 (Oct. 2018), https://www.ppic.org/wp-content/uploads/ppic-statewide-survey-october-2018.pdf.

45 See Quinnipiac University Poll, Support for Gun Control Dips in Texas, Quinnipiac University Poll Finds; Bare Majority for Arming Teachers (May 31, 2018), https://poll.qu.edu/images/polling/tx/tx05312018_tnrt26.pdf/.

46 Joseph Blocher, Firearm Localism, 123 Yale L.J. 82 (2013).

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA measures within city limits compared to rural areas.47 Establishing a right to open carry and no right to concealed carry are decisions the states are forced to accept, which ultimately creates an barrier between urban and rural areas. A right to carry openly may suit a rural region perfectly, but may place an obstacle in the path of cities wishing to reduce urban crime. The Ninth Circuit Court of Appeals failed to account for these differences in its rulings in Peruta and Young, relying instead on a historical approach that ignored reality. By not taking into account the variations with respect to attitudes and firearm regulations between these regions, the court has boxed in the definition of the Second Amendment and placed an unnecessary burden on states wishing to determine the methods of public carry acceptable to their constituents. It is also worth noting that state legislatures enacting firearm policies may fall in both urban and rural regions, for the vast majority of states contain both. While this article does not delve into this aspect of the topic, it is worth acknowledging that states could also seek to uphold the ability of local governments to regulate firearms to deal with the urban and rural differences.

B. Legislative Deference and its Applicability to Public Carrying Methods Rather than conveying a uniform right to open carry and no right to concealed carry, the courts should recognize that determining methods of public carry should warrant the same legislative deference that they have conveyed in the case of state licensing policies. Taking into account the regional differences that exist when states assert their “substantial government interest� in regulating firearms through licensing policies, the same perspective should be applied by the courts to public carry. As acknowledged by the Supreme Court, certain policy decisions regarding firearms are off the table once a Second Amendment right has been bestowed.48 Any court ruling interpreting the Second Amendment as safeguarding an open or concealed carry right in public 47 48

Id, 108.

District of Columbia v. Heller, 554 U.S. 570 (2008).

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UCLA UNDERGRADUATE LAW JOURNAL essentially strips state legislative bodies of the ability to enact firearm policy meant for their respective regions.

As many lower courts have recognized, state legislatures are given wide discretion to impose regulations on firearms within the public sphere. In Kachalsky v. County of Westchester, the lower court acknowledged that state legislatures are “far better equipped than the judiciary” when enacting policies governing firearm regulations as long as such laws remain within constitutional boundaries.49 The courts have also acknowledged that they cannot prescribe the types of firearm licensing policies that states should enact. In Woollard v.

Gallagher, the court considered whether Maryland’s licensing requirement for concealed carry licenses violated the Second Amendment.50 Ruling that Maryland’s licensing scheme did not violate the Second Amendment, the court pushed back against the plaintiff’s argument by stating that the court’s role is to ensure the legislature's policy substantially serves a significant governmental interest, rather than determine the type of policy the state should have.51 Determining methods of public carry is no different, as various regions of the United States allow either both open and concealed carry, no open carry and concealed carry, or open carry and no concealed carry.

While the lower courts appear to overstep their role when reviewing Second Amendment challenges, the courts have also acknowledged that the justification behind the enactment of these policies merits legislative deference. The justification supporting legislative deference from the courts is that the states have a compelling interest in public safety. In Kachalsky, the Second Circuit’s adherence to legislative deference stems from its recognition that New York has a “substantial government interest” in public safety and preventing crime in its decision to enact a licensing policy.52 The Fourth Circuit employs same reasoning in Woollard v. Gallagher, finding that Maryland also has a substantial interest in preventing crime by enacting such a policy.53 By interpreting the gun 49

Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012).

Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013).

51 Id, at 881.

52 Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012).

53 Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013).

50

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THE SECOND AMENDMENT OUTSIDE THE HOME: THE JUDICIARY AND PUBLIC CARRY IN THE POST-HELLER ERA licensing policies as the product of a substantial government interest in public safety or crime prevention, the lower courts have subsequently granted legislative deference to firearm licensing policies.

The courts’ justification of a “substantial government interest” in granting legislative deference to states on firearm licensing policies ought to be the same position they adopt when ruling on methods of public carry. As discussed above, the attitudes towards firearms vary amongst not only the states themselves, but also amongst regions within these states. Given the diversity of perspectives across these areas, the definition of a “substantial government interest” with regards to firearm policy is not expected to be uniform and has proven not to be, as the existence of different state firearm licensing policies demonstrates. A similar variation exists in the case of public carrying methods and the courts should acknowledge this by granting legislative deference to states on public carrying methods in the same way they do for state licensing policies. Identifying a Second Amendment right to openly carry a firearm outside the home and simultaneously upholding state policies on licensing and regulation present contradictory stances on the extent to which states should be able to regulate firearms. While one stance inhibits the state’s ability, the other grants it wide latitude. Reconciliation between the two decisions requires that methods of public carry be treated in the same fashion as licensing policies by the courts. A state’s decision to allow both open and concealed carry, no open carry and allowance of concealed carry, or no concealed carry and allowance of open carry, is a policy tool that warrants legislative deference from the courts. The courts should not override this important legislative ability by mandating a right to open carry and no right to concealed carry, or vice versa.

This does not indicate that the courts should not shy away from ruling methods of public carry or licensing permitting schemes as unconstitutional.

Courts should ensure that the permitting and licensing mechanisms devised by states do not amount to a de facto firearm ban or restriction to a subset of the population, as described in Wrenn v. District of Columbia and Young v. Hawaii.

The same must apply with regards to open and concealed carry, with the courts

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UCLA UNDERGRADUATE LAW JOURNAL striking down any policies that amount to de facto public carry bans or restriction to a subset of the law-abiding population.

Conclusion While the Ninth Circuit Court of Appeals has discerned a right to open carry and no right to concealed carry, this blanket specification of public carry is not appropriate to apply to the entirety of the United States. In conveying a Second Amendment right to openly carry firearms and no right to carry a concealed firearm outside the home, the Ninth Circuit Court of Appeals failed to consider different regional attitudes which result in variations in firearm regulation across the United States. Absent a prohibition on firearm possession fitting the criteria determined in District of Columbia v. Heller and subsequently in Wrenn and Young, the courts should not convey these new rights and should instead grant appropriate legislative deference to state lawmakers, who can best determine whether open or concealed carry suits their respective areas. The makeup of the present-day United States, where cultural differences have led urban regions to have stronger gun laws than rural areas, supports the idea that firearm regulations should be catered to specific areas. The courts have respected differences in firearm licensing mechanisms between rural and urban regions, and must move to treat public carrying decisions in the same fashion as Second Amendment jurisprudence progresses in the post-Heller era.

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UCLA UNDERGRADUATE LAW JOURNAL Wesley Jared Adams*

The Constitutionality of Partisan Gerrymandering ABSTRACT. Partisan gerrymandering has existed since the early history of the United States, and despite decades of sophisticated legal efforts, the Supreme Court has consistently blocked attempts to prohibit this practice. This article presents a brief history of its use and argues that partisan gerrymandering violates the Fourteenth Amendment’s Equal Protection Clause because of the intentional subversion of individual and group-wide voting power. This interpretation is based upon the standard established in Davis v. Bandemer, which states that gerrymandering can be ruled illegal if there is “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” This article thus argues partisan gerrymandering is unconstitutional on the basis of three reasons: (1) The legality of partisan gerrymandering allows states to subvert racial gerrymandering legislation.

Namely, since partisan intent is legal, states can use this as a justification to racially gerrymander. (2) The efficiency gap provides sufficient evidence to show intentional negative effects upon a political group. (3) Partisan gerrymandering affects individuals by violating their First Amendment right to freedom of association. This article then reviews Vieth v. Jubelirer and Gil v.

Whitmore to demonstrate the flaws in the Court’s reasoning on partisan gerrymandering. Lastly, this article reviews potential policy solutions to the issue, in the absence of a definitive Court ruling on the issue.

*Wesley Jared Adams is a fourth-year history major at University of California, Los Angeles. His academic interests include but are not limited to class and race relations in the United States, intersectionality, world economic history, ethnography, globalization, and the sociology of world religions. Wesley plans on attending University of California, Irvine Law School in the fall of 2019.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction In the United States, partisan gerrymandering represents one of the most significant threats to the electoral system. The fact that the Supreme Court has yet to rule definitively on this issue suggests that further scholarship is required to develop a cogent argument against partisan gerrymandering. In this article, gerrymandering is distinguished from redistricting in that gerrymandering seeks to further a political objective. Redistricting is defined as the process of designating legislative districts without political intent to accurately reflect population changes and distribution.1 Gerrymandering, on the other hand, involves redrawing the boundaries of electoral districts in a way that gives one party an unfair advantage over another.2 Partisan gerrymandering is a violation of the Equal Protection Clause of the Fourteenth Amendment, which states that “No state shall...deny to any person within its jurisdiction the equal protection of the laws.”3 This amendment serves as the foundation for this article and its argument against the practice of partisan gerrymandering.

Part I of this article presents a history of early case law regarding gerrymandering beginning with Baker v. Carr,4 in order to provide context for modern practices and why they are unconstitutional. This section will argue that gerrymandering violates the Equal Protection Clause of the Fourteenth Amendment because it circumvents previously established voting rights protections. Furthermore, it will also lay out the case for the relevance of partisan gerrymandering to modern American politics and the dangers that result from this practice. In Part III, the discussion focuses on the often-blurred distinctions between racial and partisan gerrymandering as it applies to modern practices and why they are unconstitutional.

These violations are amplified by the fact that improved technology allows state legislatures to more precisely target voters, fundamentally altering voters’ relationship to the electoral system and denying them equal protection under 1

What is Redistricting?, Public Mapping Project, http://www.pcmapping.org/what-isredistricting.

2 David Austin, Congressional Redistricting and Gerrymandering, American Math Society, http://www.ams.org/publicoutreach/feature-column/fc-2014-08.

3 Terry Jordan, The U.S. Constitution and Fascinating Facts About It, 49 (2007).

4 Baker v. Carr, 369 US 186 (1962)

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING the law.5 In Part IV, the article examines relevant cases such as Vieth v. Jubelirer and Gil v. Whitmore in order to demonstrate the flawed reasoning the Supreme Court relies upon in order to maintain partisan gerrymandering. Lastly, in Part V, the discussion shifts to potential policy solutions such as the efficiency gap, the three-part test established in Gil v. Whitford, and independent redistricting commissions, all of which would address partisan gerrymandering in the absence of a clear Court ruling declaring the practice unconstitutional.

I. Historical Overview of Gerrymandering in America A. The History of Political Redistricting in Early America Initially, redistricting as a policy was intended to improve democracy rather than harm it.6 Beginning in the early stages of American history, redistricting was based on the practical understanding that in order for elections to be fair, the districts in which those elections occur must be drawn with equal populations.7 This maintains each voter’s Fourteenth Amendment right to equal protection under the law, and by extension, an equal vote.8 Guaranteeing that districts have an equal number of citizens allows elections to operate fairly.

If districts are unequal, then the votes of larger districts will be less valuable when compared proportionally to smaller ones. In most states redistricting occurs every 10 years right after the completion of the U.S. census.9 The state legislature uses the results of the census to redraw districts, which subsequently requires the approval of the state’s governor. However, state legislatures often manipulate state maps using various sordid and politically self-interested tactics known as gerrymandering.

5

Nicholas R Seabrook, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics.

61, 94 Cornell University Press (2017), http://www.jstor.org/stable/10.7591/j.ctt1mmfs52.

6

Id. Id. 8 Id. 9 Id. 7

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UCLA UNDERGRADUATE LAW JOURNAL The term gerrymandering arose in the 19th century as a result of Massachusetts Governor Elbridge Gerry who redrew the maps of his state to benefit his Democratic-Republican party.10 Subsequent political cartoons and commentary remarked on the fact that the districts were oddly shaped, and at least one newspaper claimed that one of the districts looked like a salamander, thus leading to the creation of the term “gerrymandering.”11 Similarly, the phenomenon known as racial gerrymandering is distinguished from partisan gerrymandering on the basis that its focus is race rather than party. The former practice took shape in the post-Reconstruction era as a political machination of southern Democrats who sought ways to restrict the votes of African-Americans in an effort to preserve the South’s white supremacist racial hierarchy.12 These racial gerrymandering tactics often took two forms. The first is colloquially known as “cracking,” which refers to the practice of weakening a party’s electoral representation by spreading its voters across multiple districts.13 The second, known as “packing,” is enacted by taking multiple districts that typically lean towards a rival party, and combining them to reduce their overall voting power in potentially contested districts.14 Both tactics are still used widely today.

B. The Modern Relevance of Partisan Gerrymandering The 21st century has opened itself up to new technologies and strategies designed with the intention of improving the overall accuracy of district maps and crafting a more egalitarian election system. However, when these technologies fall into the wrong hands, they can also be used to improve electoral victory odds for the party in power. It is well documented that both major political parties 10

Emily Barasch, The Twisted History of Gerrymandering in American Politics, The Atlantic (September 20, 2012), https://www.theatlantic.com/politics/archive/2012/09/the-twistedhistory-of-gerrymandering-in-american-politics/262369/.

11 Id. 12 Andrew Prokop, What Is Racial Gerrymandering?, Vox (November 14, 2018), https://www.vox.com/2014/8/5/17991986/racial-gerrymandering.

13 Olga Pierce, Jeff Larson, and Lois Beckett, Redistricting, a Devil's Dictionary, ProPublica (November 2, 2011), https://www.propublica.org/article/redistricting-a-devils-dictionary.

14 Id.

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING have engaged in various forms of partisan gerrymandering since their origin.

However, the controversy over partisan gerrymandering is not a matter of political affiliation, but rather a debate regarding the meaning and interpretation of “equal protection of the laws.” The precision of census data and new systems such as Geographic Information Software (GIS), as well as the wide availability of mapping software, arguably magnifies the consequences of this issue.15 Moreover, the wide availability of these software systems such has resulted in contemporary instances of extreme partisan gerrymandering, which ultimately harms democracy. For example, in North Carolina, the state legislature utilized professional mapmakers to develop partisan maps in order to redraw a 7:3 Democratic congressional majority into a 10:3 Republican map, through the use of mapping software.16 Similar examples can be observed in multiple states; in Wisconsin, the GOP-controlled legislature “ran each potential map through computer algorithms that tested its performance in a wide range of political climates. The map they adopted is precisely engineered to assure Republican control in all but the most extreme circumstances.”17 Further research suggests that even if the population of Wisconsin begins to trend more Democratic in its voting patterns, the current political maps would essentially guarantee that Republicans do not receive below 50 seats in the state legislature.18 In 2012, Democrats received over 50% of the Wisconsin vote, yet only gained 39% of seats in the assembly, thus demonstrating how partisan gerrymandering ensures Republican dominance in the Wisconsin state legislature.19 In the past decade, multiple cases concerning partisan gerrymandering have appeared before the Supreme Court, including Gil v. Whitford, Abbott v. Perez, Benisek v. Lamone, and Rucho v. League of Women Voters of North Carolina. In the 15

Id. Carol Anderson, One Person, No Vote: How Voter Suppression Is Destroying Our Democracy 105 (2018).

17 Jordan Ellenberg, How Computers Turned Gerrymandering Into a Science, The New York Times (October 6, 2017), https://www.nytimes.com/2017/10/06/opinion/sunday/computersgerrymandering-wisconsin.html.

18 Id. 19 Id. 16

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UCLA UNDERGRADUATE LAW JOURNAL upcoming months, two partisan gerrymandering cases are set to appear before the Supreme Court and be heard before the end of 2019. Considering that the next census is in 2020, the relevance and urgency of addressing partisan gerrymandering will only become more salient in the upcoming year.

II. Gerrymandering Jurisprudence A. The Fourteenth Amendment and its Role in Case Law The practices of “packing” and “cracking” went relatively unchallenged until the 1962 Baker v. Carr case.20 In this case, Charles W. Baker and several other citizens of Tennessee challenged their state legislature’s decision to not redraw legislative districts, most of which had not been redrawn since 1901. In fact, a single vote in a rural district in 1961 Tennessee was equivalent to 19 votes in an urban district.21 Baker argued that this was a constitutional violation, given that districts were not drawn according to equal population size. Ultimately, the Supreme Court held that the legislature’s practice was a violation of the Equal Protection Clause of the Fourteenth Amendment.22 Historically, the Supreme Court refrained from ruling on cases related to redistricting under the justification that Article I, Section IV of the Constitution gives authority to state legislatures to decide the “Times, Places and Manner of holding Elections for Senators and Representatives.”23 Therefore, this case was a landmark decision regarding gerrymandering because it set a precedent for future cases to be brought before the Supreme Court, and confirmed that the Fourteenth Amendment could be used to argue against gerrymandering.

In his majority opinion for Baker v. Carr, Justice William O. Douglas argued “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth 20

Id. Redistricting and the Supreme Court: The Most Significant Cases, National Conference of State Legislatures (July 19, 2018), http://www.ncsl.org/research/redistricting/redistricting-and-thesupreme-court-the-most-significant-cases.aspx.

22 Id. 23 Id. 21

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING Amendments can mean only one thing—one person, one vote.”24 The concept of “one person, one vote” would come to serve as the intellectual and legal mantra behind future cases concerning the redistricting process.25 It encapsulates the idea that election systems should be formulated to ensure that electoral districts are equally populated in order to prevent disproportionate power in particular districts.

It is necessary to analyze cases that directly address partisan gerrymandering in order to demonstrate why the arguments in favor of continuing this practice are based upon faulty assumptions about the Equal Protection Clause as well as a misunderstanding of the principle of “one person, one vote.” In Davis v.

Bandemer, Democrats in Indiana challenged the Republican state legislature’s redistricting plan on the grounds of partisan gerrymandering, arguing that this was an unconstitutional dilution of their votes.26 This was largely based upon the fact that in the 1982 elections, Democrats received 51% of the votes statewide but gained only 43 of the 100 seats in the state.27 In Marion and Allen counties, Democrats received roughly 46% of the vote, but only 3 of the 21 seats in these two counties. The Democrats’ argument was predicated upon the idea that the Equal Protection Clause protects against partisan gerrymandering. In the end, the Supreme Court established that partisan gerrymandering is unconstitutional when there is “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”28 This article argues that recent strides in legal and empirical scholarship have provided the necessary information in order to meet the established standard, thereby proving the unconstitutionality of contemporary partisan gerrymandering.

24

Baker v. Carr, 369 US 186 (1962).

One-person, One-vote Rule, Legal Information Institute https://www.law.cornell.edu/wex/oneperson_one-vote_rule.

26 Davis v. Bandemer, 478 US 109 (1986).

27 Id. 28 Id. 25

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UCLA UNDERGRADUATE LAW JOURNAL III. How Partisan Gerrymandering Constitutes a Violation of the Fourteenth Amendment A. A Brief History of Racial Gerrymandering In order to demonstrate that contemporary gerrymandering practices meet the standard established in Davis v. Bandemer, it is necessary to briefly outline the history of racial gerrymandering. This analysis will show that racial and partisan gerrymandering are nearly indistinguishable in the contemporary United States. As previously stated, racial gerrymandering is a policy that dominated American politics throughout the post-Reconstruction era. The passage of the Voting Rights Act of 1965 (VRA), served to prohibit the intentional drawing of districts to dilute the voting power of marginalized groups.29 Much of the legal scholarship that was developed in order to justify the creation of the VRA was based upon the Equal Protection Clause of the Fourteenth Amendment, which states that every individual is entitled to “equal protection of the laws.”30 It has been argued that the concept of equal protection clearly includes voting rights, providing justification for preventing state legislatures from harming the voting power of minorities through gerrymandering.

However, the Supreme Court initially interpreted the VRA to only prohibit gerrymanders that harm minority voting power, which led to the concept of majority-minority districts.31 This led to a backlash in the 1990’s as a more conservative Supreme Court sought to inhibit any influence of race in redistricting, claiming it violated the Equal Protection Clause. Such reasoning featured prominently in the landmark cases of Shaw v. Reno and Miller v.

Johnson.32 In both cases, the Court established that race cannot be used as a factor in redistricting, thus ushering in the age of race-neutral redistricting.

However, the legality of partisan gerrymandering undermines previous

29Id. 30

U.S. Constitution--14th Amendment, Legal Information Institute, https://www.law.cornell.edu/constitution/amendmentxiv.

31 Thornburg v. Gingles, 478 US 30 (1986).

32 Shaw v. Reno, 509 US 630 (1993).

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING legislation designed to prevent racial gerrymandering, causing much of the controversy surrounding modern gerrymandering.

B. The Illusion of Race-Neutral Gerrymandering The concept of race-neutral redistricting appears to be ill-conceived given that it allows the state legislatures to blur the lines between racial and partisan gerrymandering. Indeed, there are cases where an exact determination of a racial or partisan gerrymander is reduced solely to the expressed intention of the state legislature. This means that the state can reduce the voting power of racial minorities if the expressed intention is partisan rather than racist.33 For example, in Cooper v. Harris, North Carolina Republicans controlled the state legislature in 2011, which allowed them to gerrymander districts in a fashion that disproportionately affected the voting power of African-Americans, who overwhelmingly voted Democrat.34 North Carolina justified this decision on the basis that it was a partisan gerrymander and therefore considered legal.

However, public statements issued by State Representatives Robert Rucho and David Lewis explicitly commented upon the racial nature of the gerrymander in Cooper v. Harris.35 These statements directed the redistricting chair to comply with Section II of the VRA, which calls for adjustments in majority African-American districts in a census year.36 It was these remarks that the Supreme Court deemed sufficient to rule against North Carolina. In her majority opinion, Justice Kagan argued: Faced with this body of evidence—showing an announced racial target that subordinated other redistricting criteria and produced boundaries amplifying divisions between blacks and whites—the District Court did not clearly err in finding that race predominated in drawing District 1. Indeed, as all three judges recognized, the court could hardly have concluded anything but.37 33

Erik J. Engstrom, Gerrymandering and the Future of American Politics In Partisan Gerrymandering and the Construction of American Democracy, 191, 206 University of Michigan Press (2013) https://www.jstor.org/stable/j.ctt1gk086k.

34 Cooper v. Harris, 581 US _ (2017).

35 Id. 36 Id. 37 Id.

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UCLA UNDERGRADUATE LAW JOURNAL While Cooper v. Harris is significant in that it struck down an unnecessary gerrymander, the reasoning behind the ruling would be moot if not for explicit statements by the state legislature. Unfortunately, the Supreme Court is likely to continue using this as a standard in the near future. For instance, in Virginia House of Delegates v. Bethune Hill, partisan intent was deemed to be sufficient in allowing racially gerrymandered districts,38 thus illustrating how the legality of partisan gerrymandering allows politicians to circumvent racial gerrymandering laws, thereby violating the Equal Protection Clause.

C. The Overlooked Distinction Between Racial and Partisan Gerrymandering If the distinction between racial and partisan gerrymandered districts is based entirely upon the stated intentions of the state legislature, then the VRA’s ability to protect the voting power of minorities is significantly reduced. The current law on this subject has blurred the distinction between the two forms of gerrymandering, resulting in meaningless laws and the perpetuation of unconstitutional gerrymandering. If no reasonable standard to differentiate racial and partisan gerrymandering exists, then Court precedent suggests the Equal Protection Clause should be applied to partisan gerrymandering as well.

The evident overlap between racial and partisan gerrymandering thus furthers the argument that partisan gerrymandering is unconstitutional. Racial gerrymandering has already been ruled illegal by the Court, as it violates the Fourteenth Amendment and the purpose of the VRA. The fallacy of distinguishing between the two forms of gerrymandering is supplemented by the fact that racial and ethnic minorities tend to overwhelmingly vote Democratic, and there is evidence to show that this trend is only strengthening, further suggesting that distinguishing between racial and partisan gerrymandering is misguided and both practices should be considered unconstitutional.39

38

Virginia House of Delegates v. Bethune-Hill, Oyez, https://www.oyez.org/cases/2018/18-281.

The Changing Composition of the U.S. Political Parties, Pew Research Center (Sept. 18, 2018), http://www.people-press.org/2016/09/13/1-the-changing-composition-of-the-politicalparties/.

39

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING Both of the major political parties in the United States are incentivized to either maximize or mitigate the voting power of racial and ethnic minorities groups for their benefit. Thus, the distinction between trying to limit the power of an individual’s vote for partisan reasons, as opposed to racial reasons does not hold up to close scrutiny. The increased connection between party affiliation and race suggests that the line drawn between racial and partisan gerrymandering is effectively nonexistent and further suggests that partisan gerrymandering is unconstitutional. Since racial gerrymandering has been deemed unconstitutional and the legal distinction between the two is weak, partisan gerrymandering should also be considered illegal.

D. The Intersection Between Racial and Partisan Gerrymandering Furthermore, access to more accurate census data also has been used as a tool for politicians to gerrymander districts. In 2010, Texas experienced a sizable population increase of over four million since the previous census in 2000, and as a result, required the creation of four new seats in the state legislature. Concerned about the shift in population from majority Republicanleaning whites to largely Democratic-leaning Hispanics, the GOP-dominated legislature gerrymandered the districts under expressed partisan interest.40 This was an obvious example of a racial gerrymander, justified on the basis of partisanship. This action led several Texas civil rights organizations to sue in Abbott v. Perez.41 As a result, the District Court ruled that the maps discriminated against minorities and deemed the partisan argument insufficient.42 However, the State of Texas appealed the ruling and the Supreme Court overturned it, citing insufficient evidence of racist intent and thus allowing the gerrymander to stand.43 At the same time, the fact that Abbott v. Perez resulted in a 5-4 split 40

Domenico, Montanaro, Supreme Court Says Texas Political Map Is Largely Not A Racial Gerrymander, NPR (June 25, 2018), https://www.npr.org/2018/06/25/623170874/supremecourt-says-texas-political-map-is-largely-not-a-racial-gerrymander.

41 Abbott v. Perez, 585 US _ (2018).

42 Id. 43 Id.

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UCLA UNDERGRADUATE LAW JOURNAL decision indicates there are grounds for debate regarding the possible racial intent in the Texas legislature’s redistricting. In the dissenting opinion written

by Justice Sotomayor, joined by Justices Breyer, Kagan, and Ginsburg, she asserted the Texas District Court had carefully considered the Texas legislature’s intent and had correctly found an intention to discriminate.44 An analysis of recent court cases suggests the reasoning behind the Supreme Court’s unwillingness to declare partisan gerrymandering illegal is due to the lack of a judicially enforceable standard of what constitutes unjust gerrymandering.45Despite the absence of a legally accepted standard for determining whether a particular instance of gerrymandering is just, data scientists have developed a concept known as the efficiency gap, which refers to the difference between a parties’ wasted votes in an election, divided by the total number of votes cast.46 The term “wasted votes” refers to those ballots cast for a candidate, beyond the amount necessary for them to win.47 This concept relates to partisan gerrymandering because when a large group of rival party voters are packed into one district, candidates often receive significantly more votes than necessary in order to win. As such, the efficiency gap formula makes it possible to calculate partisan bias in a district map. If the court can accurately identify partisan bias in a district, then they will have reasonable basis to declare a district map illegal on the bases of a violation of the Fourteenth Amendment.

E. Partisan Gerrymandering: Violations to Individual Rights It is through obviously intentional gerrymanders such as those previously mentioned that fundamental aspects of modern American governance are

44

Abbott v. Perez, Oyez (2018), https://www.oyez.org/cases/2017/17-586.

J. Gerald Hebert and Marina K. Jenkins, The Need for State Redistricting Reform To Rein in Partisan Gerrymandering, 29 Yale Law & Policy Review 543, 558 (2011), http://www.jstor.org/stable/41308538.

46 Nicholas O Stephanopoulos and Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82, The University of Chicago Law Review 831, 900 (2015), http://www.jstor.org/stable/43410706.

47 Id. 45

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING violated, including not only the Fourteenth Amendment, but also the First Amendment right to freedom of association.48 The First Amendment is intimately connected to the Fourteenth, because the Equal Protection Clause allows for the rights given by the First Amendment to be enacted equally by the states as well as the federal government. In fact, Thurgood Marshall has argued that for this reason, the Fourteenth Amendment is essentially the U.S. Constitution, because its importance supersedes the original document.49 This intimate connection between the two amendments provides foundational justification for this article’s argument against partisan gerrymandering.

Moreover, the use of “packing” and “cracking” strategies with the expressed intent of mitigating the electoral effectiveness of votes significantly inhibits the ability of individuals and groups to realistically elect the candidate(s) of their choice. If a district is non-competitive, then any attempt by a rival political party to influence state policy through the electoral process is essentially impossible, thus excluding them from the legislative process.50 When executed over concurrent elections, the process of gerrymandering and denying citizens legislative influence builds upon itself, resulting in voters who are effectively locked out of the political process not through lack of numbers, but through intentional manipulation by partisan actors in the state legislature. The courts have established that freedom of association includes the right to political association, and, as a result, the government can only inhibit these rights if it has a “compelling interest in doing so.”51 It is highly doubtful that increasing the

48

The 1st Amendment of the U.S. Constitution, National Constitution Center – Constitutioncenter.org, https://constitutioncenter.org/interactiveconstitution/amendments/amendment-i/assembly-and-petition-joint/interp/34.

49 Garrett Epps, American Epic: Reading the U.S. Constitution 163 (2015).

50 Id. 51 See Storer v. Brown, 415 U.S. 724 (1974), the Court found “compelling” the state interest in achieving stability through promotion of the two-party system, and upheld a bar on any independent candidate who had been affiliated with any other party within one year. Compare Williams v. Rhodes, 393 US 23 (1968) (casting doubt on state interest in promoting Republican and Democratic voters). The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 51 (1973).

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UCLA UNDERGRADUATE LAW JOURNAL electoral advantage of one political party over another constitutes a compelling government interest. In the case of Gil v. Whitford, Justice Elena Kagan conferred validity on the use of the First Amendment in partisan gerrymandering cases. She claims that under the First Amendment, plaintiffs could make a statewide argument against partisan gerrymandering, because First Amendment infractions are statewide in nature.52 The consequences of partisan gerrymandering do not solely affect those who are members of the two dominant political parties, termed political insiders, but also harm the rights of non-members, known as political outsiders.53 As a result of partisan gerrymandering, political outsiders’ rights are further marginalized by the party in power, due to the creation of non-competitive districts which have little incentive to attract unaffiliated voters because the dominant party’s seats are safe in nearly all calculated scenarios.54 Political scientists have long articulated the concept of rational choice theory, meaning that a politician’s primary interest is re-election.55 The consequences for political outsiders are clear: any chance they have of fruitfully engaging in the electoral system is completely moot, thus depriving them of their right to freedom of association. A competitive district without gerrymandering would lack these problems and promote increased political mobilization and engagement.56 In the 1950’s, the Supreme Court argued that laws inhibiting the ability of the National Association For The Advancement of Colored People (NAACP) to engage with the political system, such as those that compelled the disclosure of membership in government employment, were unconstitutional.57 The Court 52

Gill v. Whitford, Oyez, https://www.oyez.org/cases/2017/16-1161.

Bertrall Ross, Partisan Gerrymandering, The First Amendment, and The Political Outsider, Columbia Law Review (2018), https://columbialawreview.org/content/partisangerrymandering-the-first-amendment-and-the-political-outsider/.

54 Id. 55 Id. 56 Id. 57 See Gibson v. Fla. Legislative Investigation Committee, 372 US 539 (1963) (finding unconstitutional a Florida legislative committee’s attempt to compel the NAACP to disclose its membership records); Bates V. Little Rock, 361 U.S. at 525 (striking down a local occupationallicense-tax ordinance requiring that the NAACP disclose member names); NAACP v. Patterson, 53

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING argued that this was a violation of their First Amendment right to political association. A similar issue occurs in the case of partisan gerrymandering, as individuals’ ability to freely engage in the political system is threatened by the deliberate crafting of rigged, safe districts and the phenomenon of wasted votes.

State violations of the Fourteenth and First Amendments show that the standard set by the Davis case can be met with sufficient argumentation, yet the Supreme Court has consistently ignored evidence in favor of poorly reasoned arguments.

IV. Contemporary Case Analysis: Why the Supreme Court is Wrong on Gerrymandering A. Vieth v. Jubelirer In this section, this article will shift to a focus on specific partisan gerrymandering cases as well as an analysis of the faulty reasoning behind these rulings. The standard previously established in Davis v. Bandemer offered a useful and well-reasoned standard, yet one which the Supreme Court has consistently refused to apply. In Vieth v. Jubelirer, the Court went back on its previous ruling and wrongly declared that the principle formed in the Davis case was impossible to properly implement, effectively closing the door on efforts to challenge partisan gerrymandering. In Vieth, the Pennsylvania State Legislature had passed a redistricting plan following the 2000 census, and the Democratic Party argued this plan disproportionately benefited Republicans and disadvantaged Democrats. The Pennsylvania Democratic Party sued the state claiming it violated the “one person, one vote” principle, the Fourteenth Amendment, and the First Amendment’s protection for freedom of association.

The Court deemed the decision in Davis v. Bandemer to be based upon “clumsy” argumentation due to a lack of agreement on which partisan gerrymandering claims are justiciable.

357 U.S. at 466 (striking down Alabama’s attempt to compel the NAACP to disclose member names).

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UCLA UNDERGRADUATE LAW JOURNAL Furthermore, the Court established that partisan gerrymandering is distinct from racial gerrymandering cases in the sense that “it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been ‘denied its chance to effectively influence the political process’ as a whole, which could be achieved even without electing a candidate.”58 In this article, evidence has been presented proving that the distinction between partisan and racial gerrymandering is tenuous at best, thus invalidating the Court’s argument. Additionally, the existence of the efficiency gap would allow the Court to examine partisan bias in a state map, and observe how voters affiliated with a given political party are intentionally locked out of the voting process through unnatural means. Despite the Court’s ruling to the contrary, the standard established in Davis v. Bandemer is still useful and should be used to decide future cases on partisan gerrymandering.

B. Gil v. Whitford The noticeable increase in the severity of partisan gerrymandering that occurred after the 2010 census provided the impetus that voting rights lawyers and activist groups needed to pursue further legal action. The most significant of these cases was arguably Gil v. Whitford. In 2010, the Wisconsin GOP created a new voting district map that could guarantee a Republican victory in almost every scenario.59 It was not long after this decision that local civil rights groups justifiably claimed that the maps were in violation of the Equal Protection Clause. A federal judge agreed with this argument, stating the maps were a violation of the “one person, one vote” principle.60 The judge’s reasoning was based upon the idea that the significant advantage provided by redrawing the maps effectively reduced the value of certain votes whilst increasing that of others.

The State of Wisconsin was unsatisfied with the verdict rendered and appealed to the Supreme Court, which in 2018 then delivered a ruling in favor 58

Vieth v. Jubelirer, 541 US 267 (2004).

Gill v. Whitford, Oyez, https://www.oyez.org/cases/2017/16-1161.

60 Id. 59

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING of the appellants in Gil v. Whitford. The Court reasoned that the plaintiff lacked standing according to Article III of the Constitution. Article III demands that a case before a federal court must show “injury in fact,” meaning that the plaintiff must have suffered “concrete and particularized invasion of legally protected interest.”61 The core of the plaintiff’s argument rested upon the idea that Democratic votes as a whole were suppressed, rather than particular voters.62 In other words, the statewide argument provided by the plaintiff was insufficient in proving harmful effects on individuals, which Article III requires in order for a case to have standing in federal court. In essence, the Court felt that the plaintiffs failed to demonstrate that partisan gerrymandering in Wisconsin affected individuals on the district level. This criticism is fair; however, it does not consider that the intent of partisan gerrymandering is to manipulate districts in order to achieve electoral gains on a statewide and national level, such as in the state legislature and House of Representatives.

In addition, the Supreme Court did not acknowledge that the standard developed in Davis v. Bandemer is a useful one that could have changed the ruling in this case. The argument that the plaintiffs presented would have met the guidelines for that principle had it remained in effect. The failure of the plaintiffs to articulate the individual harm inflicted by gerrymandering, is not sufficient evidence to claim that this individualized harm does not exist. In her concurrence, Justice Kagan acknowledged the harm that partisan gerrymandering does to “individuals and organizations,” and advised the plaintiffs on how to move forward, suggesting that some members of the Court grasp the harms that occur.63 This article has presented evidence demonstrating how partisan gerrymandering harms individuals and groups through the dilution of voting power and thinly-veiled persistence of racial gerrymandering, both of which constitute clear violations of the First and Fourteenth Amendments.

61

Id. Id. 63 Id. 62

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UCLA UNDERGRADUATE LAW JOURNAL V. Recommendations The development of the concept of gerrymandering as well as the creation of new techniques to increase its effects has had a significant impact on American governance and democracy. Despite claiming that gerrymandering is “incompatible with democratic principles,” the Supreme Court has allowed partisan gerrymandering to stand, and recent jurisprudence suggests that this problem will persist.64 In the absence of a Court ruling declaring partisan gerrymandering unconstitutional, potential solutions to the problem should be discussed. One potential solution lies in the use of the efficiency gap formula. If it is possible to calculate the exact extent to which there is partisan bias in a district, then it is also possible to design new districts that are entirely neutral.

This would be useful for states who seek to develop non-partisan alternatives to partisan gerrymandering.

Furthermore, the District Court in Gil v. Whitford laid out a test that determines whether a map is illegally gerrymandered. They argued that a map is illegal if [it] “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.”65 This test provides the necessary legal backing for enforcing neutral districts while still leaving room for the state legislature to fulfill its role in overseeing elections—albeit with reasonable restrictions. Therefore, although the ruling in Gil v. Whitford delivered a blow to the plaintiffs seeking to discredit partisan gerrymandering, the Court also provided a path forward in determining whether gerrymandering is unconstitutional.

There is also another feasible means of enforcement that has already been applied in California and Arizona: independent redistricting committees. These committees ensure that maps are free of intentional partisan bias and remove the need for the courts to interfere directly with the electoral process. The Supreme Court has already provided sufficient legal backing for states to pursue

64 65

Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 US _ (2015).

Id.

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THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING this route if they so choose.66 Justice Ginsburg argued that independent redistricting committees are desirable because they “impede legislators from choosing their voters instead of facilitating the voters’ choice of their representatives.”67 Overall, if gerrymandering is not declared unconstitutional by the Supreme Court in future cases, states could potentially draft referendums on the creation of independent redistricting committees, similar to those in California and Arizona. Polls have shown that 52% of the U.S. electorate disapproves of partisan gerrymandering, which suggests that may be potential support for state legislatures to implement independent redistricting committees as a solution to gerrymandering.68 Conclusion Partisan gerrymandering violates the principles of democratic governance that this country is built upon, namely that citizens have the right to choose who governs them. Partisan gerrymandering effectively reverses this dynamic by creating an environment in which elected representatives choose the voters.

Elections conducted in this fashion do not reflect the will of the people, but rather are a reflection of a subset of the legislature and its partisan interests. In the Federalist No. 37, James Madison argued that “the genius of republican liberty seems to demand...not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people.”69 Furthermore, former Supreme Court Associate Justice Hugo Black stated that “no right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens,

66Id. 67Id. 68

Kathy Frankovic, Few Support Partisan Gerrymandering, YouGov (October 04, 2017), https://today.yougov.com/topics/politics/articles-reports/2017/10/04/few-support-partisangerrymandering.

69 Madison, James. "Federalist No. 37." The Avalon Project: Documents of Law, History, and Diplomacy (March 10, 2019), http://avalon.law.yale.edu/18th_century/fed37.asp.

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UCLA UNDERGRADUATE LAW JOURNAL they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.�70 Using the standard established in Davis v. Bandemer, this article proves partisan gerrymandering is unconstitutional by: (1) disproving the myth that partisan gerrymandering and racial gerrymandering are separate phenomena; (2) suggesting partisan bias should be calculated using the efficiency gap rather than relying on the legislature’s stated intent; and (3) demonstrating partisan gerrymandering violates the First and Fourteenth Amendments and harms individuals. In light of the gravity of this issue, it is imperative that the Court amend its reasoning and declare partisan gerrymandering unconstitutional; in the absence of such a ruling, states should adopt independent redistricting commissions in order to restore equal voting power and uphold our democracy.

70

Wesberry v. Sanders, Oyez, https://www.oyez.org/cases/1963/22.

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UCLA UNDERGRADUATE LAW JOURNAL Teddi Noel Mattox*

Abolishing the Statute of Limitations for Felony Sexual Crime ABSTRACT. Despite the FBI listing felony sexual assault as the second most serious crime in the United States, forty-three out of the fifty states have maintained statutes of limitations for some, if not all, felony sex offenses. Most non-capital federal level sex offenses have a statute of limitations that requires prosecution to begin within a specified amount of time for the sexual crime in question. Once the statute of limitations has expired, courts lose the ability to prosecute and potentially remove a harmful individual from the American public. This article explores the complex dimensions of felony sexual crimes and highlights the adversity sexual assault survivors face due to the felony statutes of limitations. I examine the devastating implications of placing limits on the prosecution of sexual assault and argue for a federal level abolishment of the statute of limitations for all categories of sexual assault crimes. This piece analyzes the geographic differences in felony statutes and explores the neglect survivors of sexual violence experience in the criminal and legal systems.

Explaining the trauma, inequality of resources for victims, and the entrenched interests that hinder both adults and minors in their pursuit for federal justice, this article demonstrates how the statutes of limitations have worked against the interests of survivors by obstructing opportunities for justice. I conclude that an abolition of the statute of limitations for all felony sexual crime will serve as a definitive step forward, creating a safer society for all Americans. *Teddi Mattox will graduate from UCLA in 2019 with a B.A. in International Developmental Studies and a B.A. in Political Science, concentrating on sexual and gender-based violence within both degrees. She has spent more than a year studying abroad in Cuba, Morocco, and Switzerland expanding her understanding of the rights and agency of women within legal, health, and political systems around the world. Currently, she works with the Los Angeles Domestic Abuse Response Team as a State Certified Domestic Violence Counselor. In the future, Teddi plans to pursue a dual JD/PhD program with a concentration on globally comparative social infrastructure designed to prevent and address an epidemic of sexual and domestic violence against women and children.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction The outpouring of sexual assault accusations against powerful individuals as part of the #MeToo movement has served to highlight the prevalence of sexual assault and the rarity with which legal justice is obtained for victims of this insidious form of violence. In 2016 alone, there was an estimated nearly 300,000 reported incidences of sexual assault and rape within the United States.1 While misdemeanor sexual offenses are tried in state or county level courts following a local system of legal practice, sexual assault cases at the felony level are tried in a federal court. Within the category of felony sexual assault crimes are those concerning the sexual abuse of a minor, possession or distribution of child pornography, repeated sexual assault, human trafficking for purposes of sex, and many other offenses that warrant trial as a crime against the American state.2 As stipulated by United States Code 18 Section 3282, the majority of non-capital federal level sex offenses have a statute of limitations that requires prosecution to begin within five years of the sexual offense in question.3 However, both the U.S. national government and individual states can have their own federal statutes of limitations, limiting the period of time that can elapse before prosecution is no longer viable for a sexual crime that is defined as a felony. The main difference between a state felony and a federal felony is that while a state charge is concerned with the violation of state law, being charged by the government often means that the illicit activity in question is considered a crime against the U.S. as a whole.

Generally, a statute of limitations places a limit on the amount of time within which a prosecutor must file criminal charges; however, the period of time that is allowed and when the allotted period begins varies to a wide and differential degree. While in some places the statute of limitations begins running from the day when the offense was discovered, in other jurisdictions, the statute can begin 1

U.S. DEPARTMENT OF JUSTICE, CRIMINAL VICTIMIZATION, 2016: REVISED, (2018), https://www.bjs.gov/content/pub/pdf/cv16re.pdf.

2 Guy L. Womack, Understanding Federal Crimes, HG LEGAL RESOURCES (Sep. 15, 2016), https://www.hg.org/legal-articles/understanding-federal-sex-crimes-22784.

3 U.S DEPARTMENT OF JUSTICE, CRIMINAL RESOURCE MANUAL: LENGTH OF LIMITATIONS PERIOD (2017).

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME after the victim reports the crime to the authorities. 4 As of 2014, 34 states and Washington, D.C. had statutes of limitations for filing felony rape or sexualassault charges, which could range from a few months to 30 years.5 By 2017, however, 43 states had statutes of limitations for felony sex crimes.6 For states that have statutes of limitations for rape and sexual assault, the range found between any two locations in the United States can be as unpredictable as it is arbitrary, and this has a direct impact on the ability of a survivor to report a sex crime and initiate legal action. This can be further complicated, as some states have conditions that can pause or extend the limitations, such as the 27 states that have instituted an exception to allow prosecutors the ability to file charges when there is the discovery of DNA evidence for a sexual crime.7 As a result, for similar, if not identical cases, statutes of limitations and the timed requirements that they demand be met can be completely different. While in Connecticut, sexual assault must be initially reported within five years for future DNA matches to be considered, in Georgia, there is no time limit to prosecute rape cases where a DNA match has been made. In Indiana, however, prosecutors must charge a suspect within one year of a DNA match for the case to continue.8 Over 20 States have chosen to keep the door for prosecution and the opportunity for justice closed, even when DNA evidence is matched to an assailant outside of the time limit set by the statute. With an expired statute of limitations, the courts are left powerless to move forward with prosecution and the potential removal of a harmful individual from a community. There are many ways to understand both the effects of the federal statute of limitations for sexual assault survivors and the resulting need for the abolition of this legal 4

HG.org WHAT IS THE STATUTE LIMITATION FOR RAPE?, https://www.hg.org/legalarticles/what-is-the-statute-of-limitations-for-rape-34338 (Last visited March 15, 2019).

5 Cosby Rape Allegations: It’s Time to End The Statute of Limitations in Sexual Assault Cases, WBUR.ORG, Nov. 24, 2014, https://www.wbur.org/cognoscenti/2014/11/24/bill-cosby-eileenmcnamara.

6 State by State Guide on Statutes of Limitations, RAINN.ORG, https://www.rainn.org/state-stateguide-statutes-limitations (last visited Mar. 15, 2019).

7 AJ Vicens and Jordan Michael Smith, Map: How Long Does Your State Give Rape Survivors to Pursue Justice?, MOTHER JONES (Nov. 24 2014), https://www.motherjones.com/politics/2014/11/rape-statutes-of-limitation-maps-table/.

8 See Id.

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UCLA UNDERGRADUATE LAW JOURNAL practice. Within this article, I will construct a multifaceted approach highlighting crucial advances in several different fields related to the problems that the federal statute of limitations poses for victims of felony sexual crimes. I will then synthesize these lines of argumentation to advance my case that the statute of limitations for all felony level sexual crime should be abolished.

In order to frame the evidence of why an abolition of the federal statute would serve to advance the needs of the large populations affected by this unique type of crime, Part I begins by examining the history behind the statutes of limitations for felony sexual assault. Part II then highlights how the statutes of limitations have failed to advance the fight against sexual crime within the United States given the systemic failure of the infrastructural response to adequately address, and ultimately mitigate, an epidemic of sexual assault.

Specifically, Part II explores the structural inequality embedded within both criminal and legal justice systems, including the failure of criminal response in responding to sexual crime and the socio-economic hardships associated with the access to and utilization of rape kits. Part III incorporates advancements made in the field of neurobiology that have expanded our understanding of the trauma that victims of felony sexual crime can experience, and examines the challenges in the prosecution of felony sexual assault for both adults and minors, given that the ability to obtain justice varies to a large degree on the psychological, circumstantial, and geographic demands made by the felony level framework for the sexual crime of concern. By examining the various forms of adversity the current felony statutes pose for the ability to prosecute sexual assault, I demonstrate that the current system of federal statutory limitations has served to systemically silence and deprive victims of the crucial ability to obtain justice through the legal system. Finally, Part IV addresses possible counterarguments to the abolition of the federal statute of limitations for sexual assault, ultimately reinforcing the conclusion that an abolition of this practice is the best solution.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME I. A History of Sex Crime Statutory Limitations The history behind the short statutes of limitations for matters involving sexual crime can be traced back to English Common Law. With the Common Law’s doctrine of the “fresh complaint rule,”9 victims of sexual assault were expected to come forward immediately after the incident, no matter the circumstances or, as 17th-century British jurist Sir Matthew Hale argued, “the party ravished... carries a presumption that her suit is but malicious and feigned.10” From the very origins of the statutes of limitations for rape and sexual assault, there is a presumption that undermines the potential validity a claim may have, depending on the amount of time it takes for a survivor to come forward. Built into this frame of reasoning is an inherent and gendered misunderstanding of the crime and its larger context: the disproportionately female victims of this crime lived and continue to live in a society where the male word has stronger social, economic, and political leverage in terms of trust and authority.

Statutes of limitations within the U.S. stem from the Sixth Amendment right to a speedy trial, which is concerned with the length of time between the beginning of criminal proceedings and when cases officially go to court.11 However, in placing the right to a speedy trial over that of the pursuit of justice, we must ask ourselves at what cost we are placing the rights of the accused over the potential to increase the safety of our society. Once the statute of limitations has expired for felony level sexual assault, assailants who are not charged are free not only to assault others, but to live without the consequences of their actions. The basic argument in defense of the statute of limitations is that these statutes can create a balance between maintaining public safety and protecting

9

SHAHID M. SHADHIDULLA, CRIME POLICY IN AMERICA: LAW, INSTITUTIONS, AND PROGRAMS (2008).

10 SIR MATTHEW HALE, HISTORIA PLACITORUM CONORNAE: THE HISTORY OF THE PLEAS OF CROWN 638 (1680).

11 Criminal Statutes of Limitations, CRIMINALDEFENSELAWYER.COM, https://www.criminaldefenselawyer.com/criminal-defense-statute-of-limitations.cfm (last visited Mar. 15, 2019).

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UCLA UNDERGRADUATE LAW JOURNAL defendants from wrongful charges, as memories can fade and crucial evidence can deteriorate over time. While it might be harder to prosecute and successfully convict in older cases, it is within prosecutorial responsibility to determine how best to proceed, or not, with a case of sexual assault. As a result, the statutes of limitations can deprive a victim of the ability to prosecute even when it has been determined that a case is viable to be tried within a court of law.

II. An Everyday Epidemic in the Public Psyche The Rape, Abuse, and Incest National Network, otherwise known as RAINN, has estimated that only six out of every 1,000 individuals accused of sexual assault winds up serving time in prison.12 This, coupled with the fact that sexual assault is one of the most underreported crimes in the United States, with “less than a quarter of assaults brought to the attention of the police,” provides evidence of a climate that has been ripe for unchecked sexual violence and impunity, especially against women.13 Many women coming to terms with the injustice they have suffered find themselves confronting overwhelming societal bias, socio-economic adversity, and ultimately, a statute of limitations which prevents them from coming forward to protect future victims. The argument in favor of the statute of limitations for sex crimes stresses the crucial factor of time in successful and accurate prosecution; however, those against the statutes of limitations explain that these statutes can contribute to the drawing of “arbitrary lines that shut victims out of court.”14 Over the years, concern that the rights of those accused of sexual assault have come before those of the victims of the alleged crimes has only grown stronger.15 Recently, there has been increased attention paid within the mainstream media to cases which have highlighted the

12

Ruth Padawer, Should Statutes of Limitations for Rape be Abolished?, N.Y TIMES MAG. (Jun. 19, 2018), https://www.nytimes.com/2018/06/19/magazine/should-statutes-of-limitations-forrape-be-abolished.html.

13 See Id. 14 Daniel Hemel, The Pennsylvania Catholic Church report highlights the cruelty of statute of limitations laws, VOX, (Aug. 21, 2018), https://www.vox.com/firstperson/2018/8/21/17763992/catholic-church-pennsylvania-priest-abuse.

15 See Id.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME adversity sexual assault survivors have faced due to the felony statutes of limitations of which they have been forced to navigate and the devastating implications of placing limits on the prosecution of felony sexual crime.

A. Evidence of an Unjust System The women who accused Bill Cosby of sexual assault came from all over the United States, which meant that there would be a direct relationship between the location of the sexual assault and the ability of the victim in question to both report and initiate legal action. Many of Cosby’s accusers claimed to have been assaulted in the state of California decades ago, but since the California statute of limitations was only ten years at the time of their assault, their windows of opportunity to prosecute had closed.16 On December 15, 2015, with two weeks to spare before the expiration of the statutory limitation period, charges were finally brought against Cosby for a crime that had originally been reported to the authorities in 2004 in the state of Pennsylvania, where the statute of limitations for sexual assault of the kind alleged was twelve years.17 Originally, in 2005, the District Attorney at the time, Bruce L. Castor Jr., refused to bring charges against Cosby, claiming that there was insufficient evidence to prosecute.18 This ultimately forced the alleged victim, Andrea Constand, to settle a civil suit with Cosby outside of court in 2006.19 Only after the deposition from the civil trial was released to the public did prosecutors become convinced that this case had the potential to be won and deserved to be taken up in criminal court. The fact that a man was accused of sexually assaulting 60 women and nearly evaded seeing a day in court, provides one of the most pertinent examples of the 16

This is how sex abuse victims are changing state laws, CNN.COM, Sep. 27, 2018, https://www.cnn.com/2018/09/27/us/sex-abuse-statutes-of-limitations/index.html.

17 Here’s how America’s confusing and outdated rape statutes of limitations are hurting victims,QUARTZ.COM, Feb. 22, 2016, https://qz.com/621922/americas-confusing-and-outdatedrape-statutes-of-limitations-hurt-victims/.

18 Bill Cosby Arraigned on Sexual Assault Charges Posts $1-Million Bail, VOX.COM, Dec. 30, 2015, https://ktla.com/2015/12/30/bill-cosby-sexual-assault-allegations-prosecutor-to-announcewhether-charges-will-be-filed/.

19 Bill Cosby and the case for ending statutes of limitations on rape, KTLA.COM, Jan. 6, 2016, https://www.vox.com/2016/1/6/10722646/bill-cosby-rape-statute-limitations.

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UCLA UNDERGRADUATE LAW JOURNAL faultiness of a system that grants impunity to rapists through the statute of limitations and its geographical variation, enabling assailants to evade, or otherwise intimidate, their way out of legal accountability. If the assault in question had happened in another state, the U.S. legal system would have obstructed justice and allowed Bill Cosby, a serial offender of unbelievable proportions, to walk free.

Further demonstrating how the statute of limitations obstructs justice and is detrimental to public safety, Harvey Weinstein is another notable perpetrator who almost entirely evaded prosecution for his crimes due to the way that he chose to systemically abuse and intimidate his victims. His long-standing impunity was challenged, however, when he was alleged to have assaulted a woman in New York, where the previous statute of limitations of five years for cases of first-degree rape had been struck down in 2006.20 This allowed for a survivor to come forward and raise a charge concerning one of the most serious of sexual felonies recognized by the state of New York. In abolishing the statute of limitations for first-degree felony sexual assault, legislators in New York were motivated by technological advances in DNA testing.21 The potential for not only matching, but also prosecuting a previously unknown perpetrator was enough to convince policymakers of the benefits of abolishing the statute of limitations for such a grave offense. Further, lawmakers took into consideration the profound emotional and psychological trauma that victims had survived due to their assaults, by allowing survivors the autonomy to come to the decision to prosecute those who had profoundly damaged their lives on a timeline that was entirely of their own.22 In one of the worst serial minor sex abuse cases in American history, more than 150 women and girls testified against Larry Nassar, a former doctor for USA Gymnastics and Michigan State University, alleging long-term sexual

20

Deborah Tuerkheimer, Let’s ease the statutes of limitations in rape cases, WASHINGTON POST (May. 25, 2018), https://www.washingtonpost.com/opinions/lets-ease-statutes-of-limitationsin-rape-cases/2018/05/25/d21db6c0-6044-11e8-9ee349d6d4814c4c_story.html?noredirect=on&utm_term=.6f5b53e6037f.

21 See Id. 22 See Id.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME molestation spanning the course of twenty years.23 As the statute of limitations for felony sexual abuse and/or assault of a minor required that child victims come forward by their 19th birthday in Michigan, the window for criminal-legal proceedings had closed for many survivors of the abuse, allowing a serial child molester the ability to continue his abhorrent activities free and undeterred. 24 While Nassar was ultimately sentenced to a minimum of 40 and a maximum of 175 years in prison for his serial molestation, for the 332 known victims of his abuse, the effects of their experiences, and the adversity they faced in their pursuit of justice, have reverberated nationwide.25 For sexual felonies involving minors, some accusers have more time to come forward, entirely dependent upon the felony limitations imposed by their respective state. While in some states children survivors of sexual violence have until age 50 to come forward, in other states they have only until age 21. In other states, the statute clock does not start until the victim turns 18, further demonstrating the geographical inconsistency in the protections and rights afforded to victims.26 In the case of Michigan, Nassar’s repulsive crimes inspired Public Acts 180 and 181, which extends the statute of limitations for criminal sexual assault cases for minor victims and extends the statute of limitations for civil-criminal sexual assault lawsuits for victims of all ages, demonstrating a growing awareness of how statutes of limitations for sexual crime have acted as impediments to obtaining justice for survivors of all ages and backgrounds.27 While the recent cases of Cosby, Weinstein, and Nassar received substantial media attention and unfolded before the public eye, the felony statute of limitations for sexual assault has for years prevented everyday women from seeking justice. In one instance, Lavinia Masters, a resident of Texas, was 23

Ex-gymnastics doctor Nassar moved to Oklahoma prison, CNN.COM, Aug. 20, 2018, https://www.cnn.com/2018/08/20/us/nassar-move-federal-prison/index.html.

24 Hemel, supra note 14.

25 Michigan State reaches $500M settlement for 332 victims of Larry Nassar, CHICAGOTRIBUNE.COM, May. 16, 2018, https://www.chicagotribune.com/sports/college/ctspt-michigan-state-larry-nassar-settlement-20180516-story.html.

26 Bergman, supra note 11.

27 Nassar-inspired laws give childhood sexual assault victims more time to come forward, MLIVE.COM, Jun. 12, 2018, https://www.mlive.com/news/2018/06/nassar-inspired_laws_give_chil.html.

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UCLA UNDERGRADUATE LAW JOURNAL sexually assaulted in 1985 and had to wait until 2005 to have her rape kit tested due to both police negligence and forensic backlogs. Even though DNA testing was able to identify her attacker, she was unable to prosecute her assailant because the ten-year statute of limitations for sexual assault in her state had expired.28 Unfortunately, stories of how the criminal justice system has failed and even re-traumatized victims are far more common than the American public has cared to recognize. By abolishing entirely the federal statutes of limitations that exist for the majority of non-lethal sexual crime, we can enhance the ability of victims to pursue justice when the they are able to do so given their circumstances.

B. The Failure of Criminal Response In the U.S. system of criminal response, there has yet to be a crucial shift to trauma-informed care in responding to victims of all forms of violence, but especially for victims of sexual assault and rape. The National Centre for Victims of Crime has reported that “only 46 percent of rapes that occur in the United States are reported to police and only 9 percent of these reports result in prosecution.�29 Further estimates by the National Crime Victimization Survey posit that only 23% of rape and sexual assaults were reported to law enforcement in 2016 alone.30 In the same year in the state of Washington, there were a recorded 2,200 rapes reported which led to only 476 arrests.31 This means that even if only half of the remaining reports were provable, there would still be 862 rapists, barring repeat offenders, living unpunished and virtually undetected.

The trauma resulting from sexual assault is complex, and there is much work to be done in shifting the victim-blaming narrative prevalent within the United 28

McNamara, supra note 5.

Why sex crimes have statutes of limitations, ECONOMIST, Oct. 8, 2015, https://www.economist.com/the-economist-explains/2015/10/08/why-sex-crimes-havestatutes-of-limitations.

30 U.S Department of Justice, supra note 1.

31 House Approves Bill to Remove Statute of Limitations for Rape, SEATTLEMENT, Feb. 9, 2018, https://www.seattlemet.com/articles/2018/2/9/house-approves-bill-to-remove-statute-oflimitations-for-rape.

29

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME States so that more survivors might be willing to come forward; the statute of limitations serves only as an additional barrier to reporting and prosecuting crimes of sexual violence.

Moreover, there is no systemic way to control for the individual biases that detectives and prosecutors might carry against survivors of sexual assault themselves when they determine if there is enough convincing evidence to move forward in the investigation or prosecution of a case. Currently, there are no uniform training standards for police in responding to situations of sexual assault, and with a lack of experienced investigators in the complexities of sexual crimes and the absence of a federal mandate for tracking rape kits, there are many factors that contribute to a lack of opportunity for victims to pursue justice within the period of time allotted by federal limitations. This timeframe can be determined by either the state (variable) or the nation (general 5 years). Any significant evidence in a sexual assault case that surfaces after the statute of limitations has expired will be of no help to a victim. This creates an environment with substantial barriers to justice and one in which the systemic failure of criminal response produces grave consequences, unduly burdening and harming survivors.

Specifically, investigations from actors on the federal level have exposed many instances of deeply ingrained discrimination within the criminal response system toward survivors of sexual assault. In 2015, the Justice Department issued a report on “gender-biased policing,” occurring most notably in the cities of New Orleans, Baltimore, and Missoula as well as in Puerto Rico. 32 Among many horrifying conclusions, the report drew attention to the documented hostility displayed toward sexual assault victims, in addition to the faulty and half-hearted approaches taken to investigate claims of sexual assault. As harmful stereotypes and systemically ingrained misogyny lead to the dismissal of crucial evidence, it has recently been discovered that hundreds of thousands of rape kits—packages of forensic evidence collected from the victim’s body when a

32

Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence, JUSTICEGOV.COM, https://www.justice.gov/archives/ovw/identifying-andpreventing-gender-bias (last visited Mar. 15, 2019).

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UCLA UNDERGRADUATE LAW JOURNAL sexual assault has occurred—remained untested.33 The Joyful Heart Foundation, an organization dedicated to raising awareness and advocating for victims of sexual assault, conducted an analysis of data from 38 responding states within the U.S. and was left with estimates as high as 175,000 in the number of untested rape kits that were left in crime labs and faulty storage centers across the country.34 In addition, state audits have continuously revealed shockingly high levels of infrastructural neglect for survivors of sexual violence.

Some reports have even documented the discarding of rape kits handed over to authorities by survivors in an effort to open up space in evidence rooms.35 The ability to link previously unconnected crimes and remove serial sexual offenders from society through the testing of rape kits is incredibly significant, yet the importance of this technology is severely limited by the existence of a statute of limitations, as the potential for rape kits to be utilized decreases after the statute of limitations has expired for felony sexual crime within a particular state.

One notable example of criminal response failure surfaced in 2009 when Detroit officials discovered 11,341 untested rape kits in police storage. Upon testing, the kits revealed 2,616 matches on the FBI’s CODSIS database and led to the identification of an unbelievable “850 potential serial rapists in Michigan and around the country.”36 Cleveland’s recent testing of its 4,373 backlogged kits resulted in the indictment of more than 515 assailants.37 Despite the testing of the kits, victims in both Michigan and Ohio who missed the deadline to prosecute or report were denied justice simply because lawmakers in their states had decided that their window of opportunity should close after a certain period of time. Furthermore, while some states allow for “John Doe” warrants, which allow prosecutors to initiate legal proceedings based on the discovery of a DNA profile alone, this is not a standard or widely accessible procedure for many

33

Padawer, supra note 12.

Vanessa Nason, Despite growing backlogs no national standard for standard for sexual assault evidence collection, MUCKROCK, (Apr. 12, 2017) https://www.muckrock.com/news/archives/2017/apr/12/sexual-assault-evidence-project/.

35 See Id. 36 Nason, supra note 34.

37 Nason, supra note 34.

34

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME Americans. Further, access to both rape kit tests and the facilities in which these can be collected and analyzed may be much more of a challenge for low-income victims or those who lack access to quality healthcare systems.38 In some cases, short statutes of limitations can even serve to harm others near the scene of the crime, as the pressure of a closing window of time can result in the incarceration of an innocent individual while the base of evidence is processed. An abolishment of the federal statute of limitations for sexual assault will allow for the time necessary to process rape kits, work towards the clearing of the backlogs existing all over the nation, and enhance the ability for prosecutors to file a case once sufficient evidence has been collected.

C. Rape Kit Justice The constant scientific advances in the field of forensic investigation and DNA testing are reason enough to keep the window for prosecution open, especially for the tens of thousands of cases that go cold initially. This is especially relevant given the administrative strain and the backlog of evidence, specifically in the form of rape kits, that has already been well documented. Even the idea that survivors will be afforded a more equal opportunity for justice without having to work against a time limit assumes that rape kit standardization is equitable and collected, processed, and stored in nationally standardized ways that minimize the biases present within the criminal justice system. According to a report from the state of Washington, as of 2016, only 74 hospitals employed sexual assault nurse examiners and these professionals were not evenly distributed across the state.39 Legally, hospitals and the police are not obligated to test or keep these kits.40 If nurses are untrained, a rape kit might even be collected in an incorrect manner that could serve to corrupt limited available 38

Understanding the Use of John Doe Arrest Warrants in Cold Case Sexual Assaults for Prosecutors, SAKITTA.ORG, https://sakitta.org/toolkit/docs/11586_SAKI_Brief_JohnDoeArrestWarrantProsecution (last visited Mar. 15, 2019).

39 Taylor McAvoy, Victims of sexual assault urge end to statute of limitations, HERALDNET (Mar. 11, 2018), https://www.heraldnet.com/news/victims-of-sexual-assault-urge-end-to-statute-oflimitations/.

40 Padawer, supra note 12.

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UCLA UNDERGRADUATE LAW JOURNAL evidence. Additionally, at rape crisis centers or clinics located in rural or socioeconomically deprived areas, survivors may not be informed if there is a statute of limitations in place for reporting sexual assault to the police once the rape kit has been collected. They may also be unaware of the process for notifying the authorities that they would like for the police to hold onto the evidence collected.

The widespread mishandling of rape kits is exemplified by the case of Amanda Nguyen, a Harvard student who was raped in 2013. Nguyen’s forensic evidence was collected, but from the moment it was taken from her body, she had to fight, tracking down and contacting numerous agencies every six months to ensure that her rape kit was not thrown away.41 As of today, there is no known estimate of how many rape kits have been destroyed without the notification of the survivors in question. As a result of her experience, Nguyen was successful at advocating and organizing for the passing of the Federal Sexual-Assault Survivors Bill of Rights in 2016. With this federal legislation, states are now “required to keep all rape kits for twenty years, or until the statute of limitations for rape in that state has expired.�42 However, there is little means of enforcing the legislation and there remains a lack of urgency in processing the kits before the statute of limitations expires. If the federal government were to abolish the statute of limitations for felony sexual assault, police may be more inclined to process the kits, especially if the only alternative is to hold on to untested DNA evidence indefinitely. As cities and localities deal with sifting through their backlogs of untested rape kits, a clear link between the economic resources available and the ability of police to dedicate the time necessary to test each DNA kit becomes apparent. Survivors from underfunded areas may have a lower chance of having their rape kit tested and consequently at pursuing their justice, compared to survivors from more privileged areas, thus exacerbating systemic inequality within the criminal justice system. Abolishing the felony statute of limitations for sexual assault would allow more time for kits to be 41

Diana Pearl, 24-Year-Old Rape Survivor Is Pushing Congress to Pass Sexual Assault Survivors Bill of Rights, TIME (Nov. 18, 2017), http://time.com/collection/american-voices2017/4478049/amanda-nguyen-american-voices/.

42 See Id.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME tested, helping to ensure that the socio-economic status of some survivors does not completely disadvantage and limit their opportunity to seek justice.

III. The Neurobiology of Sexual Assault and SocioGeographical Constraints The effects of trauma on victims of sexual assault can present significant adversity when trying to work within a superimposed timetable constructed by either state or national felony statutes of limitations. The time it takes to heal on a neurobiological level, combined with the geographic constraints of felony prosecution, can create a near impossible landscape of sexual assault statutes that must be comprehended and navigated with limited resources in the context of other forms of circumstantial adversity. In this section, I draw attention to how difficulties with the statutes of limitations can be further compounded for minors who are victims of felony sex crimes. I examine these arguments together to provide evidence that an abolition of the felony statute of limitations will serve to broaden the space for the necessary processing of trauma, often dependent on access to resources and individual levels of privilege. This calls further attention to how a federal limit regarding the ability to prosecute a profound crime against an individual can not only harm the survivor but the larger wellbeing of our nation.

A. The Impact of Trauma The ways in which the dynamic human brain deals and adapts to trauma are only just beginning to be understood, and there is a necessity for legislation that considers how trauma is processed and remembered in order to effectively address the endemic sexual assault in the United States. Trauma and the journey of recovery may oftentimes involve a convoluted and uneven process of healing.

Phenomena such as “tonic immobility� have provided researchers with the opportunity to understand the response of the body to stressful or dangerous

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UCLA UNDERGRADUATE LAW JOURNAL situations in which a victim loses the ability to move or fight back.43 According to research, this is a biological phenomenon that happens in “nearly half of all rapes.”44 In the populations studied, research demonstrated that 90 percent of victims reported an experience of re-victimization in their interactions with law enforcement when reporting the crime.45 Already in a traumatized state, the experiences that have been notoriously associated in interacting with law enforcement are experiences that are understandably avoided for as long as possible.

There has also been an evolution in the understanding of “Rape Trauma Syndrome,” otherwise known as “Sexual Assault Trauma Syndrome” which is a “psychological impairment that a rape or sexual assault victim may encounter after the crimes have been committed” with the capability to “disrupt normal physical, emotional, intellectual, behavioral and social characteristics and behaviors of the affected person.”46 There is even the phenomena of “delayed recall,” in which people are only able to remember an experience of sexual assault years after it happened. This is a form of dissociative amnesia wherein victims have detached mentally during the event as a coping mechanism.47 The way we have structured a legal system to disengage with victims of trauma is damning, especially with the neurobiological evidence that has been uncovered regarding minor victims of sexual assault crimes.

Given the high percentage of sexual assault survivors that know their attacker or abuser, the statute of limitations makes it especially difficult for those with childhood trauma to come forward within a specified window of time, ultimately blocking them from initiating legal action. Our legal system has

43

Many Rape victims experience involuntary paralysis that prevents them from resisting, EUREKAALERT.COM, https://www.eurekalert.org/pub_releases/2017-06/w-mrv060617.php (Jun. 7, 2017).

44 McCavoy, supra note 39.

45 McCavoy, supra note 39.

46 Sexual Assault Trauma Syndrome Explained, HG.ORG, https://www.hg.org/legalarticles/sexual-assault-trauma-syndrome-explained-39221 (last visited Mar. 15, 2019).

47 Sara Gaynes Levy, When You Don’t Remember Your Sexual Assault, COSMOPOLITAN (Dec. 28.

2018), https://www.cosmopolitan.com/sex-love/a25700541/delayed-recall-sexual-assaultrecovered-memories/.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME demonstrated a profound lack of care and awareness for the various altered states of consciousness sexual assault can produce, and this is profoundly important when it comes to the statutes of limitations for felony sexual assault, especially if significant components of trauma only manifest years after the event. A short statutory period does not take into account the resultant element of trauma experienced by an individual.

B. Geographic Constraints As the window to report and prosecute sexual assault varies greatly from state to state, survivors of aggravated and felony level sex crimes across the USA are faced with a dizzying patchwork of overlapping requirements to obtain justice. While in Maryland there is no statute of limitations for cases of rape in criminal proceedings, in Nevada, the time limit is 20 years.48 Though California previously had a ten-year limit, in 2016 it abolished the statute of limitations for almost all felony-level sex crimes. Some states, such as Illinois, even attach statutes of limitations for the prosecution of sexual assault to a reporting deadline. In this framework, a survivor in Illinois must come forward within three years, from which point the state has ten years to file charges; if the victim takes longer than three years, the case expires.49 The existing system of varying statutes of limitations and their confounding levels of qualifications, dependent upon largely uncontrollable circumstances of assault, such as geographic location, results in profound judicial disparity in the ability to pursue justice.

If survivors cannot process their trauma, get to a safe space, and gather all the resources and knowledge necessary to file for legal action before the expiration of a period of as little as three years, as is the case in Minnesota, then they are apparently not deserving of an opportunity to obtain justice. The felony statute of limitations serves to directly undermine the prosecutorial severity with which the United States is able to accord to a crime that disproportionately

48

Casey Tolan, Nevada extends statute of limitations because of Bill Cosby rape allegations, SPLINTER NEWS, (Jun. 5, 2015), https://splinternews.com/nevada-extends-statute-of-limitations-becauseof-bill-c-1793847950.

49 Smith, supra note 7.

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UCLA UNDERGRADUATE LAW JOURNAL targets its female population. As a result of expanding awareness regarding the tremendous inequality that survivors must surpass in order to have an opportunity at justice, along with the social, economic, and psychological repercussions of coming forward with an allegation of sexual assault; as of 2017, Wyoming, North Carolina, South Carolina, West Virginia, Kentucky, Virginia and Maryland have no statute of limitations for any felony sex crimes.50 Other states have taken steps towards a total abolition as well, with Colorado lengthening the amount of time to pursue felony charges from 10 to 20 years and Nevada extending its statute of limitations from four years to 20 years for victims of felony sexual assault.51 Ultimately, the complex variations in the state-determined felony-level statutes of limitations are primarily concerned with outsider quantification of the trauma and severity of sexual assault. There is a plague of sexual and genderbased violence that tears at the fabric of our communities today, and state legislators have improperly retained the unique power to decide how much pain the victim should be feeling as a result of the assault, and subsequently, when the processing of this pain should be finished so that victims are able to go through the potentially re-traumatizing process of bringing their case to court.

Every form of sexual assault, particularly at the aggravated felony level, is an egregious offense to the individual, community, and nation and the ability of victims to pursue justice should be a reflection of this fact.

C. Circumstantial Adversity In addition to the geographic inequality of statutory limitations, there has been little accounting for the complex circumstantial situations that many victims of felony sexual assault find themselves in, leading up to and immediately after the crime occurs. In an overwhelming number of situations,

50

Rainn, supra note 6.

Daniela Altimari, Advocates Press For End To Statute of Limitations For Sexual Assault Crimes, HARTFORD COURANT (Jan. 7, 2018), https://www.courant.com/politics/capitol-watch/hc-polstatute-of-limitations-sex-assault-20180104-story.html.

51

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME particularly when there is diminished access to resources, or the use of coercion, intimidation, shaming, and violence, there can be a lack of convincing evidence for survivors of felony sexual assault to be able to prove their case within the window of time allotted by a short felony statute of limitations. It can take years to uncover crucial evidence, years that could result in the inability to prosecute a serious sexual assault. Sexual assault victims can be both terrified to come forward with their accusations and traumatized for years before reaching out, especially in situations where the assailant is a relative, a friend, or a figure of trust within a community or social group.

Moreover, for women with both undocumented and legal immigrant status, the fear that reporting could end in the deportation of a family member or serve to undermine a community may drive a survivor to live in silence until a safe opportunity arises. According to the Bureau of Justice Statistics, in 88 percent of rape cases the accused and accuser know each other. Unfortunately, the limitations place a time limit on how long it should take for a survivor to be able to work towards a situation in which they are safely and sustainably away from the assailant with the resources and support that they need to come forward. 52 A victim would have little motivation in sharing their truth when living with the constant threat of reprisal and even less motivation in moving forward with reporting when they are financially dependent on the accused. By abolishing the federal statute of limitations for sexual assault, all victims, regardless of circumstance, would get an opportunity to pursue justice when it is secure for them.

In some cases, allegations of rape can not only serve to confuse members of a population but also serve as a detriment to the honor and reputation of the victim as well. Many victims need to see others step out in order to gain the crucial knowledge and the courage to determine if it is safe for them to do so themselves. This is exactly what happened with the Cosby trial, as woman after woman heard her voice amplified by those before and those after, all finding solace and a new beginning in the fight against an injustice that they collectively experienced. The temporal space to amplify these voices is exactly what is 52

Padawer, supra note 12.

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UCLA UNDERGRADUATE LAW JOURNAL needed to start the painful task of unearthing an entire national history of sexual assault hidden in the shadows. For trials of felony sexual assault, the case may last for years, especially if an assailant asserts that they are not guilty. Not only will survivors have to repeatedly remember, recount, and painfully relive the assault, but they will have to endure the gaslighting, questioning, and excruciating doubt of legal personnel, a jury, friends, and loved ones who have all been implicated in a system that believes that those who have committed the most heinous of sex crimes are “innocent until proven guilty.” Sexual assault has been one of the most difficult crimes to prove in the American court of law with a conviction rate of less than 1 percent.53 Survivors are all too aware that once they reconcile with the difficult psychological effects of this crime, they will not only face discrimination within their own communities, families, and from criminal authorities, but within the legal system as well. 54 An abolishment of the felony statute of limitations for sexual assault will allow for the necessary time it can require to gain the confidence and resolve to stand behind a truth within a situation that is challenging for all those involved.

D. Psychological Effects on Child Victims The Boston Globe’s horrific revelations of generations of hidden and exploitative sexual abuse by the Catholic Church revealed the psychological and socio-legal difficulties in both reporting and initiating prosecution of sexual assault for minors. According to the U.S. Department of Justice, 90 percent of child sexual abuse victims are abused by someone close to them. Due to many reasons, such as feeling that it is their fault or that they may not be believed, minors are especially hesitant to report. It can take years, or even decades, to get

53

Andrew Van Dan, Less than 1% of rapes lead to felony convictions. At least 89% of victims face emotional and physical consequences, WASHINGTON POST (Oct. 6, 2018), https://www.washingtonpost.com/business/2018/10/06/less-than-percent-rapes-lead-felonyconvictions-least-percent-victims-face-emotional-physicalconsequences/?noredirect=on&utm_term=.306ccb9cf82f.

54 See Id.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME to a place in which they are ready to share this experience with others.55 For the victims detailed in the Boston Globe report on Catholic Church abuse, it was highlighted that most of those affected individuals did not reveal the abuse until they were in their 40s—decades later.56 In Pennsylvania, a grand-jury report described a “systemic cover-up of child sex abuse by the Catholic Church,” stating the jurors “believed more than 1,000 children were sexually abused by hundreds of priests over the past seven decades” and that the number “afraid ever to come forward is in the thousands.” 57 In a landmark decision, this grand jury advocated for the removal of the statute of limitations for criminal sex cases because “no piece of legislation can predict the point at which a victim of child sex abuse will find the strength to come forward.”58 Furthermore, the revelations of systemic sexual abuse perpetrated by Larry Nassar, covered up by both the University of Michigan and USA Gymnastics, added fuel to the conviction that trauma, societal infrastructure, and even the legal system itself worked against the interests of survivors in the collective silencing of their voices. No timetable for healing will be the same for any two individuals. Though research is ongoing, a 2014 study of 1,050 subjects in Germany found that men and women were, on average, 52 years old when they first reported child sex abuse they had experienced.59 Given the high percentage of sexual assault survivors that know their attacker or abuser, the statute of limitations makes it especially difficult for children to come forward when they are older, ultimately blocking them from initiating legal action. As a result of the acknowledged difficulties of the children who have been victims of sexual crimes, many jurisdictions within the United States have lengthened the felony statute of limitations in relation to sex crimes against minors. This is especially 55

Raising Awareness about Sexual Abuse: Facts and Statistics, NSOPW.GOV, https://www.nsopw.gov/(X(1)S(3nntzafs3jgw3hnqmb5j35gw))/enUS/Education/FactsStatistics?AspxAutoDetectCookieSupport=1 (last visited Mar. 15, 2019).

56 Padawer, supra note 12.

57 Haley Sweetland Edwards, Statute-of-Limitation Laws Can Leave Few Choices For Child SexAbuse Victims, TIME (Sep. 13, 2018), http://time.com/5394927/statute-of-limitations-changes/.

58 PA OFFICE OF ATTORNEY GENERAL, REPORT 1 OF THE 40TH STATEWIDE INVESTIGATING GRAND JURY (2018).

59 Edwards, supra note 57.

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UCLA UNDERGRADUATE LAW JOURNAL so given the deepening understanding of the crippling neurobiological effects of sexual assault, the circumstantial adversity faced by child victims, and the entrenched institutional interests, such as the Catholic Church, that have fought for impunity in minor assault. Facing over 3,400 allegations of sexual abuse by Catholic priests between 2004 and 2014, the Church has demonstrated its understanding of the benefit of these statutes for perpetrators by publicly spending millions of dollars in fighting against the removal of the statutes of limitations in states across the United States.60 Not only do some sex offenders understand how to evade accountability with the passage of time, but some weaponize this very aspect of our legal system in order to perpetuate systemic abuse. As of 2019, 15 states now have no cutoff for prosecuting any felony sexual assault of a minor. This means that 35 states still refuse to allow prosecutions of felony sexual assault of a minor after the expiration of the statute of limitations.

With an abolition of the felony statute of limitations for sexual crime, many underaged victims, who would have suffered in silence for their entire lives, will have a hope at pursuing justice.

Above all, there is very little evidence that child and adult survivors should be treated so differently by the legal system. The majority of the same factors that deter child victims from speaking out are those that have instilled the same drives of fear in adult victims of sexual assault. Adult victims do not necessarily have more agency than do minors when they are sexually assaulted, and neither group has an enhanced ability to avoid being the victim of a sex crime. The practices of systemic sexual exploitation of children and adults find roots in the same abuses of power and privilege, and both groups find their voices silenced by social, economic, and legal subjugation. Failing to abolish the felony statute of limitations for all forms of sexual crime, especially when it comes to the sexual assault of minors, only creates more room for molesters to continue their criminal activity unimpeded. Abolishing the federal statute of limitations for sexual assault will help protect children who have not only been abused but also 60

Vatican says 848 priests defrocked for sexual abuse since 2004, NYDAILYNEWS.COM, May. 6, 2014, https://www.nydailynews.com/news/world/time-vatican-releases-wide-raning-statisticspriests-defrocked-rape-child-abuse-article-1.1781825.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME purposefully silenced by both perpetrators and the institutions that have participated in this exploitation, by either condoning the sex crimes or protecting the associated abusers.

IV. Statutes of Limitations and Irrational Fears While arguments in favor of the statutes of limitations may be relevant for some types of crimes, most of this argumentation demonstrates a misunderstanding of the nature of sexual violence. There are many within the legal community who believe that a short statute of limitations will spur survivors to come forward faster, but such a view betrays a deep misunderstanding of the social, economic, or psychological situations of which a victim of sex crime might find themselves. Furthermore, the idea that the statutes of limitations protects the accused from wrongful conviction is rooted in an irrational fear, and damaging perception, that correlates time with falsehood. In fact, according to the National Registry of Exonerations, since 1989, there have only been 52 cases where men convicted of sexual assault were exonerated due to false accusation within the United States. For comparison, within this same timeframe, there were 790 cases in which people were exonerated for murder.61 As with other forms of crime, there exists a microscopic and wrongfully convicted minority that is a natural result of the way our legal justice system processes and weighs evidence. If there is enough proof beyond reasonable doubt, then the accused will be convicted. Regardless, we must focus our priorities on protecting the disproportionately female and minority victims who do not receive any form of justice within the boundaries of our legal system for sexual crime. Exonerations are a sign that the justice system that the United States has designed is working as hoped. The comparison of this falsely convicted minority to the overwhelming percentage of those affected by sexual assault within the United States underscores the grave fact that while our system 61

The National Registry of Exonerations, LAWUMUCH.EDU, http://www.law.umich.edu/special/exoneration/Pages/browse.aspx (last visited Mar. 15, 2019).

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UCLA UNDERGRADUATE LAW JOURNAL can correct for those wrongly accused, our system can never correct for the failure to provide justice for victims of sexual crime.62 The notion that abusers “deserve to go on with their lives” is a devastating misunderstanding of the hardship survivors face and represents a threat to public safety.63 Prioritizing the ability of assailants to move on above that of survivors misses the point of a system that must fight for justice and protect victims of sexual assault.

Simply put, survivors are penalized for the time it has taken for them to find their own voices and sometimes their own selves after their world has been turned upside down. According to RAINN, when accounting for how many rapes go unreported, only about 3 percent of rapists ever see jail time.64 Fear that the abolition of the federal statute of limitations for sexual assault would result in wrongful convictions is baseless, and any additional opportunity a prosecutor could get to pursue long-overdue justice should be granted. The inconsistent nature of the statute of limitations for felony sexual assault within the United States weakens a justice system it claims to reinforce. Failing to give survivors the ability to bring viable cases of sexual assault into a court of law, especially when a crime can be prosecuted at the felony level, only results in a higher likelihood of more and more victims. Eliminating the felony statute of limitations for sexual assault will allow survivors one more chance, in an already uneven field of opportunity, to try and obtain the justice they are so disproportionately denied.

Conclusion At the peak of the #MeToo movement, the New York Police Department reported a nearly 50 percent increase in rapes reported in May 2018 compared to May 2017 with 19.3 percent of those reported rapes having occurred in previous years.65 If prosecutors had reviewed the evidence and determined that 62

The Criminal Justice System: Statistics, RAINN.ORG, https://rainn.org/statistics/criminaljustice-system (last visited Mar. 15. 2019).

63 McCavoy, supra note 39.

64 Edwards, supra note 57.

65 NYC Sees Increase In the Number of Reported Rapes…Is #MeToo Why?, OBSERVER.COM, Jun. 6, 2018, https://observer.com/2018/06/nyc-reported-rapes-me-too-movement/.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME there was enough to substantiate a charge of felony sexual assault beyond reasonable doubt, why would the federal legal system prevent these cases from moving forward? Statutes of limitations for sexual felonies do little to protect our nation or strengthen a legal system that allows impunity for assailants simply due to a closed window of time. Placing an arbitrary deadline over the heads of victims who will already face discrimination only serves as a reminder of the fact that the psychological health, safety, and stability of the survivor come second to the demands of a legal system that desires immediate closure on a crime that is lifelong in terms of the trauma it inflicts. In a society that offers little support for survivors, it is cruel to demand that survivors beat all odds to come forward in a time that is convenient for the public and for the potential offender.

Nationally, there are no statutes of limitations for murder, embezzlement, kidnapping or even failure to pay back federal student loans.66 This means that while prosecution can be allowed at any time for the failure to pay back a college loan, a sexual assault of felony proportions will not. This sends an unimaginable message to survivors of sex crimes, and it shows. The Bureau of Justice Statistics designates rape and sexual assaults as the category with the lowest reporting rate of any violent or property crime for the year of 2016,67 and with 1 in 4 girls and 1 in 6 boys sexually abused, the United States is home to tens of millions of victims who have not received the support needed to confront their difficult experiences.68 Capital murder is a frequently cited example for an instance in which no statute of limitations should be applied under any circumstances, and that is because we as a society have recognized that the loss of a life is one of the greatest evils that could have ever been incurred. However, I challenge others to expand on this conception of the loss of life. When a victim has been sexually assaulted and then subsequently denied the ability to pursue justice within the framework of their own healing from trauma, there is a definitive loss of life that has occurred. The voice can be the only thing we have left in advocating for 66

Six Laws with no statute of limitations, BANKTALK.ORG, http://banktalk.org/2012/04/26/sixcrimes-with-no-statute-of-limitations (last visited Mar. 15, 2019).

67 U.S. Department of Justice, supra note 1.

68 Child Sex Abuse Statutes of Limitation, CHILDUSA.ORG , https://www.childusa.org/sol/ (last visited Mar. 15, 2019).

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UCLA UNDERGRADUATE LAW JOURNAL ourselves once the unthinkable has transpired, and when the legal system deprives a survivor of this crucial ability, it stifles a truth that can help us all.

Abolishing the felony statute of limitations for sexual assault is necessary to begin solving a crippling problem that has long been obscured from the public eye.

The geographical variance in felony-level statutes of limitations has resulted in systemically silenced survivor populations all throughout the US and led to skewed opportunities at justice. Because of the implicit bias that a statute of limitations places against late reporting, the legal culture surrounding sexual assault directly favors assailants who have been able to use their power to not only commit sexual assault but silence their victims beyond the point of which they could be held legally accountable for their actions. This contributes to a culture that fails to consider the immensely personal and traumatic nature of this crime and the power imbalances that allow it to be perpetrated in such an unaccountable way. Additionally, given landmark advancements in forensic recognition and DNA and communications technology, our federal policies should be evolving with the expanding way in which prosecutors might be able to prove sex crimes. This, coupled with our advancing understanding of the neurobiological effects of trauma should result in the decision to allow survivors more time to heal on their own accord, work toward safer circumstances, and permit for longer investigations receptive to new evidence. This will contribute towards higher chances at a long overdue justice and a safer society at large.

With less than a 1 percent conviction rate and less than a quarter of victims of sexual assault estimated as reporting nationally, it is irrefutably clear that we are fighting to function within a broken system.69 70 The pursuit of equality and justice for victims of sexual assault remains elusive, and our nation remains in peril and at the mercy of those free to assault unhindered within our current system. For felonies to simply be forgiven and forgotten signals not only an unwillingness, but an institutional weakness on behalf of the federal legal system. The United States has a choice, and our justice system should not have 69 70

Van Dan, supra note 53.

U.S. Department of Justice, supra note 1.

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ABOLISHING THE STATUTE OF LIMITATIONS FOR FELONY SEXUAL CRIME a limit to how much justice it is able to provide for our citizens. It is time for rampant sexual crime to be treated like the national epidemic it is. We must take responsibility to build faith in our criminal and legal response systems by finally allowing these institutions to enhance the capacity of our nation to fight sexual crime and empower our survivors by bringing them one step closer to justice.

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UCLA UNDERGRADUATE LAW JOURNAL Jiaye (Kyle) Hou*

The Role of the WTO in the U.S. – China Trade War ABSTRACT. The U.S. - China trade war has placed the World Trade Organization (WTO) at its weakest point since its establishment more than two decades ago. The international economic order pivotal to global trade maintained by the WTO may be coming to an end in the next several years.

Ironically, the two countries in the midst of a trade war are also the two countries central to the WTO’s current predicament. Why has the WTO been the go-to platform for resolving trade disputes between countries and why has this changed in the context of China? How did China’s political and economic structure deem the country an outlier in WTO law? Taking into account recent trade strife between the two biggest economies, it is imperative for the WTO to reclaim its role as an effective mediator for these disputes. This article explores the application of WTO law to the Chinese system and the repercussions of its perceived inadequacy. It suggests that while China has the responsibility to agree to negotiate modified WTO regulations, the United States should also cease unilateral trade threats that are detrimental to all parties.

*Jiaye (Kyle) Hou is a third-year Sociology and Economics double major at UCLA. He is interested in international and comparative law and plans to attend law school after graduation.

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR Introduction Since its inception, the World Trade Organization (WTO) has been an international platform pivotal to the progression and mediation of trade between global economies. Given the rapid growth of the Chinese economy in recent years, the WTO has been forced to confront the shifting geopolitical order and consider how to modify its laws to ensure that they are applicable to the country’s unique political, economic, and legal system.1 The current trade war between the United States and China suggests that the WTO’s role as an international authority charged with mitigating trade tensions has been severely damaged. However, U.S. dissatisfaction with the WTO law’s treatment of China did not suddenly emerge when President Donald Trump started imposing tariffs on Chinese imports in 2018, but rather dates back to the 2000s. The accumulation of perceived legal oversights and injustices of WTO law and its Dispute Settlement Mechanism has resulted in several U.S. presidential administrations attempting to disable the WTO’s functions and prompted the standoff between the two countries.2 By ignoring the WTO's principal function, bilateral trade threats from both China and the U.S. illustrate that the organization did not adequately address all aspects of trade disputes between the two economies. The WTO Dispute Settlement Mechanism is a major organ of the institution whose function is to resolve trade disputes between member countries.3 The U.S. government believes that WTO law has failed to curtail certain advantages China has been able to gain at the expense of its trading partners due to its exceptional economic system.4 A featured example is the 2008 US — AC/CVD Dispute. In this landmark dispute, the WTO

1

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 261 (2 ed.).

2 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 311 (2 ed.).

3 Gretchen H. Stanton, The WTO Dispute Settlement Framework and Operation, in The Economics of Quarantine and the SPS Agreement 53 (Kym Anderson, Cheryl McRae, and David Wilson ed., 2001).

4World Trade Organization, WTO, https://www.wto.org/english/news_e/news16_e/us_statment_dsbmay16.

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UCLA UNDERGRADUATE LAW JOURNAL Appellate Body’s definition of a “public body” allowed China to circumvent U.S. duties which were established to counter “unfair” advantages given to Chinese enterprises by their government.5 The United States has employed various unilateral and plurilateral methods to diminish the WTO’s influence in the hopes of binding China’s rapidly developing economy. These measures range from imposing billions of dollars in tariffs on Chinese imports to organizing mega-regional trade agreements with China’s trade partners, which draft international trade laws outside of the WTO’s jurisdiction. Taking into account the toll that the ongoing trade war has had on the global economy, it is imperative that we address China’s unique position in the WTO along with the profound significance of U.S. countermeasures.

This article will suggest that abandoning the WTO in favor of unilateral attacks would be more detrimental to all parties than resolving issues through its dispute settlement system. I contend that the most beneficial path for both countries is for treaty drafters from both sides to agree upon modifications of the current WTO legal system in order to address overlooked issues unique to China’s system. It would also be constructive for the WTO to use mega-regional trade agreements as resources for understanding the concerns of its member countries and making adjustments to its system accordingly. Part I of this article will compare the norms of international trade disputes before and after the inception of the WTO with a focus on China’s participation. Part II will examine the issues with WTO law in regard to its treatment of China’s unique economic model and specifically, its definition of a “public body” in the US — AC/CVD Dispute. Part III will recount the United States’ legal arguments and expectations in weakening the WTO’s influence by employing unilateral actions on Chinese imports, blocking the reappointment of judges to the Appellate Body, and shifting to mega-regional trade agreements. Finally, Part IV will offer guidelines to ensure the WTO’s future as a central negotiation mechanism for

5

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 302-303 (2 ed.).

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR global economies while meditating current disputes about the legitimacy of the Chinese system.

I. China’s Participation in International Trade Disputes The WTO serves as an intergovernmental organization that regulates trade between its 164-member nations. The organization’s multilateral system for resolving disputes has reinforced the global economy’s stability and decreased unilateral actions between its members.6 China’s entry into the WTO marks the country’s extensive integration into the world economy and open markets. In this section, I compare the efficacy of trade disputes between China and its trading partners before China joined the WTO. I also discuss the process of resolving trade disputes through the WTO Dispute Settlement System.

A. U.S. – China Trade Disputes Before China’s Ascension to the WTO Before China’s ascension to the World Trade Organization (WTO) in 2001, trade disputes between China and the U.S. usually involved both parties issuing economic threats before reaching an agreement to avoid a full-blown trade war.7 Economic threats are normally instigated by stronger countries which essentially convey that a trade war would “hurt you more than it hurts me.”8 The United States has a history of using its superior economic power to coerce weaker developing nations such as Brazil, Russia, India, and China (“BRIC” countries) into modifying their economic and legal systems to better accommodate U.S. interests. After discovering that Brazil was a leading actor in undermining the minimum standards for patent protection, the United States

6

Understanding the WTO, A Unique Contribution, WTO, https://www.wto.org/english/thewtoe/whatis_e/tif_e/disp1_e.htm.

7

Kevin Eugene Thomas Cunningham Jr., 99 J. Pat. & Trademark Off. Soc'y 279 (2017) Fine China: A Look into Chinese Intellectual Property Infringement, Treaty Obligations, And International Responses, HeinOnline 300, 301 (2017).

8 Id. at 298.

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UCLA UNDERGRADUATE LAW JOURNAL raised import duties on Brazilian products by 100% in 1988.9 The tariffs prompted swift rectification from Brazil, which declared its intent in 1989 to draft legislation for the protection of pharmaceutical patents.10 While unilateral power moves by a superior economy tend to be effective in coercing significantly weaker economies into submitting to the former’s demands, such actions are less useful against powerful economies.

Due to China’s growing economy and its role as a major trading partner of the United States, disputes between U.S. and China have proven to be less onesided than relations between the U.S. and other BRIC countries. In 1992 and 1994, the United States and China reached agreements after both nations exchanged threats of economic sanctions due to the United States’ dissatisfaction with China’s intellectual property laws.11 The repeating phenomenon of threats and counterthreats between the U.S. and China resulted in relatively ineffective modifications to China’s intellectual property law during the 1990s, and is referred to as the “cycle of futility” or the “China Cycle” by scholars.12 This cycle of diplomacy has subsided since China joined the WTO. B. A Brief Introduction to the WTO Dispute Settlement Mechanism Since China’s arrival to the World Trade Organization in 2001, the organization’s Dispute Settlement System (DSS) has served as an internationally recognized and frequently utilized method for the U.S. and China to lodge official complaints against each other, or act as third-party respondents.13 The WTO is a multilateral organization that regulates international trade with a system that is “more legalized and judicialized than any other area of international relations.”14 The

9

Id. at 300.

Id. at 300.

11 Id. at 300.

12 Peter K. Yu, A Half-Century of Scholarship on the Chinese Intellectual Property System, American University Law Review 1071, (2018).

13 Gregory Shaffer, China’s Rise: How It Took On The U.S. In The WTO, 2018 University of Illinois Law Review 135 (2018).

14 Id. 10

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR organization has a profound influence in regulating China’s economic and overall presence in the world, for it is the only international tribunal that China recognizes.15 Despite its many territorial disputes with other countries, China has not agreed to become a party in the International Court of Justice or the International Tribunal of the Sea. Consequently, the WTO has become one of the few platforms where China and its trade partners are able to confront their disagreements and resolve their disputes through an internationally accepted judicial system.16 The WTO Dispute Settlement System is initiated by a complaining member country formally requesting consultations with the disputed member through the WTO Dispute Settlement Body (DSB).17 Besides the two countries that file and dispute the complainant, other members may also join the complaining member country as third-party respondents. If the countries do not reach an agreement during the formal consultations, the complaining country is able to request the establishment of a dispute resolution panel which consists of a chairperson and two members who are approved by both countries.18 The panel normally provides its conclusion six months to one year after both parties submit written and oral arguments, evidence, and questions for one another.19 If a consensus cannot be reached for adopting the panel’s rulings, or if a party disputes the panel’s decision, the case is taken to the Appellate Body. The Appellate Body is identified as a permanent body in the WTO consisting of seven judges of whom three are designated to consider the appeal. Compared to the WTO’s predecessor, a legal agreement known as the General Agreement on Tariffs and Trade (GATT), the WTO provides greater incentives for members to use its dispute settlement system rather than adopt unilateral approaches to 15

Gregory Shaffer, China’s Rise: How It Took On The U.S. In The WTO, 2018 University of Illinois Law Review 128 (2018).

16 Gregory Shaffer, China’s Rise: How It Took On The U.S. In The WTO, 2018 University of Illinois Law Review 129 (2018).

17 Id. 18 Gretchen H. Stanton, The WTO Dispute Settlement Framework and Operation, in The Economics of Quarantine and the SPS Agreement 54 (Kym Anderson, Cheryl McRae, and David Wilson ed., 2001).

19 Id.

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UCLA UNDERGRADUATE LAW JOURNAL resolving trade disputes. While it is simple for the losing side to block the panel’s rulings during the GATT period due to a lack of countermeasures, the defendant in a WTO dispute settlement is likely to experience economic retaliation if it fails to comply with the rulings of the panel or Appellate Body which has found it to be in violation of the WTO’s legal agreements.20 Also, the establishment of an appeals process which frequently modifies the decision of the panel offers a second chance for both complaining and defending countries that may not be satisfied with the initial ruling.21 Despite the benefits of the WTO’s mechanism, some flaws have persisted in the DSS to date, some of which are considered to be the motivation for states to enact measures bypassing the WTO, such as those taken by the U.S. and China since the start of the trade war.

C. China as an Active Participant in the WTO Due to its unfamiliarity with WTO law and its anti-legalist culture, China deliberately kept a low profile in WTO negotiations during the first few years of its WTO membership.22 However, Chinese leaders recognized the importance of having knowledge of WTO law in order to ensure China’s success in the international trade organization. As a result, the Chinese government has devoted significant resources in educating the government body, academia, businesses, and law firms in order to promote legal knowledge required to engage effectively with the WTO system.23 By 2006, China evolved from acting as a reluctant participant into an active agent which utilized the DSS to defend its interests.24 In fact, between 2006 and 2015, over a quarter of cases in the WTO’s dispute settlement system involved China as a complainant or

20

Keisuke Lida, Is WTO Dispute Settlement Effective?, in Global Governance 210 (2004).

Id. 22 Gregory Shaffer, China’s Rise: How It Took On The U.S. In The WTO, 2018 University of Illinois Law Review 137 (2018).

23 Id. at 129.

24 Gregory Shaffer, China’s Rise: How It Took On The U.S. In The WTO, 2018 University of Illinois Law Review 132 (2018).

21

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR respondent.25 Professor Ka Zeng of Arkansas University is optimistic about China’s growing use of the WTO’s DSS and remarked that “the growing utilization of the [WTO Dispute Settlement Mechanism] may have helped channel the tensions surrounding the bilateral trade relationship and thereby prevented intense interest group pressure from impairing overall U.S.-China trade relations.”26 Other academics, such as Harvard Law Professor Mark Wu, find fault in the pattern of WTO trade disputes relating to China. Wu observes that three of the four biggest economies in the WTO - the United States, the European Union, and Japan - rarely start disputes with one another. In fact, since the Great Recession, disputes between these three countries essentially ended. Instead, 90% of disputes between the four most powerful economies between 2009 and 2016 were directed towards the fourth—China.27 Wu further contends that WTO litigation has unfolded into an “Established Power(s) versus China dynamic.”28 Conceding that the number of disputes against China would naturally rise with China’s increasing ventures in global trade, Wu argues that the root of China’s issue in the WTO lies in its distinct economic structure.29 II. Problems with Defining Chinese Entities Under WTO law As Wu argues, the main reason for the United States’ dissatisfaction with the WTO’s treatment of China is the WTO’s inability to address China’s exceptional economic structure. The treaty drafters did not anticipate the development of the Chinese economic system when WTO regulations were initially drafted before China’s ascension to the organization. This has led to instances where the dispute resolution panel and Appellate Body have arrived at conflicting interpretations of China’s system. This section will examine a 25

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 262 (2 ed.).

26 Id. at 263.

27 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 263-264 (2 ed.).

28 Id. at 264.

29 Id. at 264.

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UCLA UNDERGRADUATE LAW JOURNAL dispute between the United States and China where the WTO’s definition of a “public body” could not adequately address the relations between China’s government and enterprises. This dispute illustrates why the U.S. has resorted to trading measures external to the WTO such as initiating the trade war.

A. Concessions Made by China When Joining the WTO Several powerful WTO members, including the United States, believe the WTO is incapable of protecting their trade interests with China due to the organization’s inadequacy in addressing China’s unique economic model. The relationship between the Chinese Communist Party (CCP) and private enterprises in China cannot be placed within an existing category, creating difficulties for WTO law, which was drafted without Chinese involvement.

While some commentators believe that China employs a strongman state capitalist system similar to Russia and Venezuela, the Chinese government allows market forces to influence many parts of the economy.30 To address the probability that China’s exceptionalism could allow its government and enterprises to take advantage of other countries in trade, the WTO implemented two major provisions before China’s accession as a member. The first allowed China’s trading partners to consider China as a Non-Market Economy (NME) for anti-dumping investigations for fifteen years following China’s accession, regardless of changes to China’s economic structure. The second declared that trading partners had the right to raise tariffs solely against Chinese imports through the WTO safeguard system.31 Due to the fact that these two provisions have recently expired, debates on whether China is to remain an NME have remained ongoing and unresolved.32

30

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 282 (2 ed.).

31 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 290 (2 ed.).

32 Id.

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR B. The US — AC/CVD Dispute An example of U.S.-China contention on the latter’s economic model is the landmark US — AC/CVD Dispute.33 In 2008, the U.S. Department of Commerce ruled in domestic administrative agency determinations that select Chinese state-owned banks and state-owned enterprises (SOEs) were “public bodies.”34 The U.S. then imposed countervailing duties (CVDs) on Chinese exporters which received preferential loans from the SOEs and banks which were categorized as “public bodies.”35 When China filed a dispute in the WTO that argued against the legitimacy of the United States’ categorization of those banks and SOEs, the Appellate Body ruled in favor of China.36 The Appellate Body rejected the United States’ majority ownership argument which the WTO panel had upheld. The Appellate Body deliberated that in addition to proof of the Chinese government’s ownership of these entities, evidence must have shown that “the formal indicia of government are manifold” and “such control has been exercised in a meaningful way.”37 However, the Appellate Body’s jurisprudence cannot successfully separate many state-owned banks and SOEs in the Chinese economy as public bodies or private firms.38 In the U.S.’ perspective, the WTO’s inability to answer such pivotal questions to its biggest trade partner and competitor while ruling against its interests signals that the WTO may not prove to be effective for dealing with future disputes. I believe this to be one of the reasons why the United States did not adhere to the WTO DSS when employing unilateral measures to raise tariffs on China and other countries during the trade war.

33

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 302 (2 ed.).

34 Id. at 302.

35 Id. at 303.

36 Id. at 302.

37 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 303 (2 ed.).

38 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 303 (2 ed.).

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UCLA UNDERGRADUATE LAW JOURNAL C. What is a Public Body?

The legal concept of a “public body” was created by WTO treaty drafters seeking to curtail governments who subsidize domestic goods to give them an edge against imported competitors. WTO law allows members to seek recourse against certain subsidies with adverse trade effects.39 For instance, the U.S. can bring a dispute against China if the Chinese government offers subsidies to the extent that the U.S. domestic industry is injured.40 However, governments could circumvent WTO rules by establishing non-government organizations to act as a medium to indirectly transfer subsidies from the government to the benefitting enterprise. To prevent governments from abusing this loophole, the WTO established the concept of public bodies and extended its laws to apply to government subsidies provided by a public body.

What constitutes a “public body” was of little dispute in international trade law before the rise of China.41 Public utility organizations which regulate coal, electricity, and natural gas situated outside of a government but nonetheless subjected to government control are considered to be public bodies. Most nonChinese public bodies are subject to statutory guidelines which clearly illustrate their connection to the government. In China’s case, WTO lawmakers failed to anticipate a unique scenario.42 WTO agreements and treaties do not account for the instance where a Chinese entity is extraneous but maintains ties to the government and provides rather than receives a subsidy.43 Professor Mark Wu draws on two scenarios to illustrate how common and well-regulated practices conducted worldwide may differ from those performed by China: “(1) a bank provides a loan to an enterprise with preferential terms lower than those provided to its normal customers; and (2) a firm sells a good to a customer at a

39

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 301 (2 ed.).

40 Id. 41 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 301 (2 ed.).

42 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 301 (2 ed.).

43 Id.

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR discounted price.”44 While both behaviors are frequent in the global economy, China’s distinct political and economic system raises the question of whether the same rules should apply to its endeavors.

With reference to the US — AC/CVD Dispute, should the Chinese SOE’s and banks which gave preferential loans to Chinese exporters be considered public bodies under WTO rules? Like other global enterprises, the targeted SOEs and state-owned banks have branches worldwide and shares listed overseas open for non-Chinese citizens to become shareholders. The Appellate Body’s classification of a public body requires not only state ownership of an enterprise but that the government has meaningfully exerted its power to influence the latter’s decisions.45 The Appellate Body’s jurisprudence only addresses a limited number of Chinese firms for which Chinese law formally acknowledges the role these firms play in the economy. For example, Article 34 of China’s Commercial Banking Law requires banks to “carry out their loan business upon the needs of [the] national economy and the social development and under the guidance of State industrial policies.”46 The Bank of China’s Global Offering further advised investors that the Chinese Commercial Banking Law “requires commercial banks to take into account government microeconomic policies in making lending decisions.”47 Other than banks, Chinese enterprises rarely confirm the government’s influence explicitly, which would categorize them as private firms under WTO law. While some firms may not directly acknowledge the government’s influence, the distinctions between Chinese firms and their global counterparts are undeniable. If the Chinese government has the ability to remove the firm’s top management, or if there is a party committee inside the firm, should these instances deem the firm a public body?

Furthermore, while the existing Chinese Commercial Banking Law specifically

44

Id. at 301.

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 303 (2 ed.).

46 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 303 (2 ed.).

47 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 303 (2 ed.).

45

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UCLA UNDERGRADUATE LAW JOURNAL states that state-owned banks are obligated to follow government policies, what happens if this provision is amended in the future?48 Would banks previously categorized as public bodies remain so under WTO regulations? Frustration over the current inconclusiveness of Chinese firms as public bodies and future uncertainty of WTO law’s effect on Chinese trading practices have fueled U.S. unilateral actions during the ongoing trade war.

III. U.S. - China Trade War In light of unilateral measures employed by both the U.S. and China during the trade war, the WTO’s influence in international trade has significantly diminished. However, it is also being utilized as a legal battlefield for both countries to gain an edge over each other in tariff battles. Currently, the WTO is in the awkward position of being utilized by some member countries which are also actively attempting to curtail its power, such as the United States. In this section, I discuss U.S. endeavors to drive the WTO into an impasse by blocking reappointment to the Appellate Body and forming mega-regional trade agreements to dilute the WTO’s influence.

A. U.S. Trade Tariffs of Section 232 and Section 301 The U.S.- China trade war consists of two battles: the tariff battle and the legal battle. The legal battle is developing relatively quietly and slowly compared to the tariff battle which has received widespread media attention. The two major rounds of tariffs that the United States imposed on Chinese imports were based on Section 232 of the Trade Expansion Act of 1962 and Section 301 of the U.S. Trade Act of 1974. Following U.S. tariffs and Chinese retaliation tariffs in both cases, the two countries brought disputes against one another using the WTO’s dispute settlement mechanism.

Section 232 gives the Executive Branch of the United States the ability to conduct investigations to “determine the effects on the national security of

48

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 304 (2 ed.).

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR imports.”49 After the findings of the investigation are presented to the executive branch, the President has 90 days to determine whether he or she concurs with the results; if the President concurs, he is to “use his statutory authority to adjust the imports as necessary, including through tariffs or quotas.”50 On January 19, 2018, the Department of Commerce delivered Section 232 reports to President Donald Trump. The reports found that “United States steel imports were nearly four times [its] exports, and that aluminum imports had risen to 90% of total demand for primary aluminum.”51 Trump concurred with the department’s conclusion that high quantities of steel and aluminum imports threatened the United States’ national security, and increased tariffs on steel and aluminum imports by 25% and 10%, respectively.52 In the months after the tariffs were imposed, South Korea, Brazil, Argentina, Australia, the European Union, Canada, Mexico, and several other economies agreed to quotas or were exempted from Section 232 tariffs.

Section 232 tariffs deeply impacted China, the world’s largest raw steel and primary aluminum producing country.53 On April 9, 2018, China took the first step to challenge actions taken by the United States Executive Branch by requesting consultations with the U.S. through the WTO’s DSB.54 The Chinese government also announced that it planned on raising tariff duties on 128 products imported from the United States which included fruit, wine, pork, and aluminum waste.55 49

The White House, What You Need To Know: Section 232 Investigations and Tariffs (2018), https://www.whitehouse.gov/briefings-statements/need-know-section-232-investigationstariffs/ 50 Id. 51 Id. 52 Crowell and Moring LLP, Section 232 Tariffs Archives (2018), https://www.cmtradelaw.com/category/section-232-tariffs/ 53 Robin Gross, Section 232 Investigations: The Effect of Imports on the National Security BIS Website, (2001), https://www.bis.doc.gov/index.php/other-areas/office-of-technologyevaluation-ote/section-232-investigations.

54 WTO Dispute Settlement - DS544: United States Certain Measures on Steel and Aluminum Products, WTO Trade Statistics - World Trade Statistical Review 2017, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds544_e.htm 55Ashwin Kaja, Christopher Adams and Gina M. Vetere, China Raises Tariffs on 128 U.S. Imports in Retaliation for U.S. Section 232 Steel and Aluminum Tariffs, Global Policy Watch (2018),

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UCLA UNDERGRADUATE LAW JOURNAL China alleges that the U.S. has violated two WTO agreements—the Agreement on Safeguards and GATT 1994. China’s first major argument against the United States’ Section 232 tariffs in its WTO consultation states that U.S. tariffs constitute safeguard measures under articles XIX: 1(a), XIX 2 of GATT 1994 and articles 2.1, 2.2, 4.1, 4.2, 5.1, 7, 11.1(a), 12.1, 12.2 and 12.3 of the Agreement on Safeguards.56 These safeguard measures are intended “to alleviate injury to domestic industry from increased quantities of imported steel that competes with domestic steel.”57 However, China maintains that the U.S. did not properly determine how imported steel injured or threatened domestic producers.58 China also alleges that the aluminum and steel tariffs violated GATT Article II, prohibiting countries from imposing duties on imported goods in excess of the amount agreed upon between the U.S. and other WTO members in the United States’ Schedule of Concessions and Commitments - annexed to the GATT 1994. China’s also alleged that the U.S. has violated GATT Article I which obligates the U.S. to treat China’s goods no less favorably than the goods of other economies.59 The U.S. has infringed upon China’s trading rights by granting exemptions to other WTO member countries and not to China in the case of Section 232 tariffs. China’s final argument criticizes the United States’ unilateral actions which blatantly overlook the WTO DSS.60 In March 2018, President Trump announced the second major round of tariffs which targeted approximately 50 billion dollars’ worth of Chinese

https://www.globalpolicywatch.com/2018/04/china-raises-tariffs-on-128-u-s-imports-inretaliation-for-u-s-section-232-steel-and-aluminum-tariffs/.

56 WTO Dispute Settlement - DS544: United States Certain Measures on Steel and Aluminum Products, WTO Trade Statistics - World Trade Statistical Review 2017, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds544_e.html.

57 Robin Gross, Section 232 Investigations: The Effect of Imports on the National Security BIS Website.

58 WTO Dispute Settlement - DS544: United States Certain Measures on Steel and Aluminum Products, WTO Trade Statistics - World Trade Statistical Review 2017, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds544_e.htm.

59 WTO Dispute Settlement - DS544: United States Certain Measures on Steel and Aluminum Products, WTO Trade Statistics - World Trade Statistical Review 2017.

60 Id.

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR imports.61 Trump’s decision was based on a Section 301 investigation conducted by the Office of the United States Trade Representative (USTR). Section 301 of the Trade Act of 1974 “is the principal statutory authority under which the United States may impose trade sanctions on foreign countries that either violate trade agreements or engage in other unfair trade practices.”62 The USTR lists three categories of actions of U.S. trade partners under which Section 301 would be deemed actionable: (1) trade agreement violations (2) acts, policies or practices that are unjustifiable (defined as those that are inconsistent with U.S. international legal rights) that burden or restrict U.S. Commerce (3) acts, policies or practices that are unreasonable or discriminatory and that burden or restrict U.S. Commerce.63 USTR states in its findings report that the third category is the most relevant in its investigation into Chinese acts of intellectual property violation.

The USTR’s investigation lists several cases where China has infringed upon the intellectual property rights of U.S. companies. USTR claims that confidential surveys of U.S. companies clearly indicate that China requires and pressures U.S. companies into transferring their technology to Chinese entities.64 China’s foreign ownership restrictions force U.S. companies which seek to obtain or maintain access to the Chinese market to transfer their technology to their Chinese counterparts through joint venture programs.

Defending these technology transfers, Chinese trade associations and law firms argue that these are products of “voluntary agreements” without “government

61

Under Section 301 Action, USTR Releases Proposed Tariff List on Chinese Products, Summary of the U.S.-Australia Free Trade Agreement | United States Trade Representative, (2018). https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/april/under-section301-action-ustr#.

62 International Trade Administration, SECTION 301 (Jul. 25, 2018), https://www.trade.gov/mas/ian/tradedisputes-enforcement/tg_ian_002100.asp.

63 Ramona-Elena Irimia, Marc Gottschling (2016) Taxonomic revision of Rochefortia Sw. (Ehretiaceae, Boraginales), Biodiversity Data Journal 4, (2016), https://doi.org/10.3897/BDJ.4.e7720, 20.

64 Ramona-Elena Irimia, Marc Gottschling (2016) Taxonomic revision of Rochefortia Sw. (Ehretiaceae, Boraginales), Biodiversity Data Journal 4, (2016), https://doi.org/10.3897/BDJ.4.e7720, 20.

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UCLA UNDERGRADUATE LAW JOURNAL intervention.”65 They also claim that Chinese laws or regulations do not explicitly force foreign investors into transferring their technology, and that the central government has instructed local governments not to require technology transfer.66 In response to these rebuttals, the USTR targets China’s distinct political system by addressing it as “powerful and opaque.”67 After China joined the WTO in 2001, it committed to ending its previous practice of requiring technology transfer as a quid pro quo for market access.68 Instead, the USTR investigation claims that China’s technology transfer policies have become more implicit, often carried through oral instructions and without the direction of laws or regulations.69 The USTR’s report also points to the complex relationship between China’s government and the private sector. In the case of technology transfers, the Chinese government may indirectly pressure U.S. companies by allowing the partnering Chinese company to make the demand. Although the Chinese private sector’s responsibility in facilitating technology transfer is not put into place in any regulations, “foreign companies often reasonably understand that the demand originated from the government, as business decisions in China are very much influenced by the public policy objectives pursued by the State and the CCP.”70 U.S. dissatisfaction with the WTO

65

Ramona-Elena Irimia, Marc Gottschling (2016) Taxonomic revision of Rochefortia Sw. (Ehretiaceae, Boraginales), Biodiversity Data Journal 4, (2016), https://doi.org/10.3897/BDJ.4.e7720, 20.

66 Id. 67 Id. 68 China’s accession agreements include the Protocol on the Accession of the People’s Republic of China, WTO Doc. WT/L/432 (Nov. 23, 2001) [hereinafter “Accession Protocol”], and the Report of the Working Party on the Accession of China, WTO Doc. WT/ACC/CHN/49 (Oct. 1, 2001) [hereinafter “Working Party Report”]. China’s technology transfer commitments are contained in Accession Protocol, General Provisions ¶ 7.3 and Working Party Report ¶ 203 (incorporated into the Accession Protocol through ¶ 1.2).

69 Ramona-Elena Irimia, Marc Gottschling (2016) Taxonomic revision of Rochefortia Sw. (Ehretiaceae, Boraginales), Biodiversity Data Journal 4, (2016), https://doi.org/10.3897/BDJ.4.e7720, 20.

70 Ramona-Elena Irimia, Marc Gottschling (2016) Taxonomic revision of Rochefortia Sw. (Ehretiaceae, Boraginales), Biodiversity Data Journal 4, (2016), https://doi.org/10.3897/BDJ.4.e7720, 20.

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR Appellate Body’s decision on what constitutes public bodies in the US — AC/CVD Dispute could potentially serve as a reason why the U.S. decided to employ a unilateral approach rather than utilize the WTO Dispute Settlement Mechanism.

The WTO, like other international judiciary systems, is only effective insofar as it is unable to implement and enforce its jurisdiction. Hans Morgenthau, a major figure in 20th-century international politics, portrayed international law as an inadequate system that made it easy for strong states to both violate and enforce international law, thus, placing weaker states at a disadvantage.71 While both the U.S. and China have utilized the WTO DSS during the Section 232 and Section 301 tariffs, the fact that both countries began implementing tariffs without waiting and consulting the Dispute Settlement Body’s findings has marginalized the WTO’s power in resolving the trade war.

B. Undermining the WTO: The Appellate Body and Megaregional Trade Agreements The United States has attempted to systematically dismantle the WTO’s Dispute Settlement System by blocking the appointment and reappointment of Appellate Body judges during the Obama and Trump presidencies. The Appellate Body is a seven-member group “unaffiliated with any government” that functions as the WTO’s highest adjudicative body.7273 According to WTO law, each of the seven members of the Appellate Body serves a four-year term and may be reappointed for another four-year term. The appointment and reappointment of Appellate Body members require the consensus of WTO member nations. As mentioned previously, three judges are appointed to each Dispute in which the parties cannot reach a consensus on the WTO panel ruling.

Since August 2017, the U.S. has frequently objected to the WTO processes to 71

Shirley V. Scott, International Law In World Politics: An Introduction, 14 (2010).

WTO Members Intensify Debate Over Resolving Appellate Body Impasse, US, Canada Ramp Up NAFTA Negotiating Pace After US-Mexico Draft Deal | International Centre for Trade and Sustainable Development 22, (2018).

73 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 311 (2 ed.).

72

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UCLA UNDERGRADUATE LAW JOURNAL find new judges to fill the vacancies left by departing judges.74 The U.S. has also objected to the reappointment of two judges to their second term as Appellate Body members. In opposing South Korean Professor Seung Hwa Chang’s reappointment in May 2016, the U.S. explicitly cited Chang’s decision in two rulings regarding China as reasons for its opposition.75 Trade Judge Shree Baboo Chekitan Servansing also departed from the Appellate Body in September 2018 after the U.S. hindered his ability to pursue a second term in the Appellate Body, leaving three active members in the organization.76 As the terms of two remaining judges come to an end in 2019, the Dispute Settlement Body faces an impending breakdown if the United States continues its stance on the Appellate Body.

Another method that the United States employed in weakening the influence of the WTO over international trade was by crafting new legal trade rules to restrict China outside of the WTO’s jurisdiction. For instance, the United States signed the Trans-Pacific Partnership (TPP) with Japan, Canada, Australia, and eight other Asia-Pacific WTO members in February 2016; the definition of a “public body” described in the TPP differs from that expressed in the WTO. President Obama participated in facilitating this agreement between the U.S. and its trading partners with the geopolitical purpose of reducing their dependence on trading with China.77 Obama declared, “[W]e cannot let countries like China write the rules of the global economy,” and explained that the TPP allowed the United States and its allies to “write those rules, opening new markets to American products while setting high standards.”78 74

WTO Members Intensify Debate Over Resolving Appellate Body Impasse, US, Canada Ramp Up NAFTA Negotiating Pace After US-Mexico Draft Deal | International Centre for Trade and Sustainable Development 22, (2018).

75 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 311 (2 ed.).

76 Tom Miles, World Trade's Top Court Close to Breakdown as U.S. Blocks Another, Reuters (Sep. 26, 2018), https://www.reuters.com/article/us-usa-trade-wto-judge/world-trades-top-courtclose-to-breakdown-as-us-blocks-another-judge-idUSKCN1M621Y. 77 Jane Perlez, U.S. Allies See Trans-Pacific Partnership as a Check on China, The New York Times (Oct. 6, 2015), https://www.nytimes.com/2015/10/07/world/asia/trans-pacificpartnership-china-australia.html.

78 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR Many commentators remarked that the TPP, and other agreements were drafted with the intent to counter China’s rise in global trade.79 For instance, the TPP regulations state that all state-owned enterprises, regardless of their status of public body or private enterprise under WTO law, cannot give or receive non-commercial assistance to their government or other SOEs.80 TPP regulations also expound the importance for its members to provide greater transparency into the operations of their SOEs.81 Although China is not a member of the TPP, these regulations reflect the intent of the U.S. and other TPP members to regulate the power of China’s SOEs in international trade. The TPP serves as a “building block” for developing new trade rules that China would need to abide by, otherwise, it would be excluded from preferential trading agreements between the U.S. and its allies. However, this policy did not transition smoothly into Trump’s presidency.

Even before his election to the presidency, Trump was a harsh critique of the TPP. During his campaign, he propelled the view that the initiation of the TPP “is a bad, bad deal for American businesses, for workers, for taxpayers” 82 to the forefront of his political position. On the third day of his presidency, Trump signed an executive order withdrawing the United States from the TPP. Since then, he has initiated a trade war with China by slapping tariffs on billions of dollars’ worth of Chinese imports.

The full-blown trade war damages not only the economies of China and the United States, but also the world’s economic prosperity in general. China reports its 2018 economic growth at 6.6 percent—a three-decade low; the Chinese government and forecasters expect 2019 numbers to dip even lower than those of last year.83 Simultaneously, the International Monetary Fund’s L.J. 315 (2 ed.).

79 Id. at 315.

80 Id. at 316.

81 Id. 82 Adam Taylor, A timeline of Trump's complicated relationship with the TPP, The Washington Post (Apr. 13, 2018), https://www.washingtonpost.com/news/worldviews/wp/2018/04/13/atimeline-of-trumps-complicated-relationship-with-the-tpp/?utm_term=.962d6971c0cc.

83 Joe McDonald, China's economic growth slows to 6.6 percent, a 3-decade low, PBS (Jan. 21, 2019), https://www.pbs.org/newshour/economy/chinas-economic-growth-slows-to-6-6-percent-a-30-

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UCLA UNDERGRADUATE LAW JOURNAL (IMF) “World Economic Outlook” report projects that America’s economic growth will slow to 2.5 percent compared to the previous 2.9 percent estimate.84 In August 2018, the IMF projected the world’s economic growth to be 3.7 percent, which is also a decrease from its April estimate of 3.9 percent. Maurice Obstfeld, the IMF’s chief economist, attributes this decline to the U.S.-China trade war, claiming, “when you have the world’s two largest economies at odds, that’s a situation where everyone suffers.”85 He predicts that global growth may continue to drop if the trade war does not come to an end. Thus, it is imperative for all involved parties to negotiate a resolution to end the dispute in order to ensure that the wellbeing of their citizens is maintained.

IV. Suggestions and Conclusion The mere fact that the U.S. has resorted to unilateral measures knowing full well that Chinese retaliation will drastically hurt its own economy indicates the United States views the WTO system in a deeply pessimistic light. However, U.S. attempts to weaken the WTO’s influence on global trade did not simply originate under the current Trump administration, but rather were made apparent by the Obama administration’s refusal to reappoint Professor Seung Hwa Chang to the Appellate Body in 2016. President Obama’s policy to draft mega-regional trade agreements outside the WTO also sought to curtail China’s trading advantages which the WTO has not adequately addressed to the satisfaction of multiple WTO members. While both administrations have made an attempt to address China’s “influence” in the WTO, I contend that the current policy of employing unilateral measures is detrimental to global economic development, and directly harms the economies of the two major participants.

Although President Obama sought to form trade agreements outside the

year-low.

84Alex Ward, Trump's trade war is hurting the global economy, Vox (Oct. 9, 2018), https://www.vox.com/2018/10/9/17955106/imf-economy-trump-trade-war-growth.

85Alex Ward, Trump's trade war is hurting the global economy, Vox (Oct. 9, 2018), https://www.vox.com/2018/10/9/17955106/imf-economy-trump-trade-war-growth.

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR WTO, his successor essentially reversed the progress made towards forming plurilateral trade agreements. In his 2016 article, Professor Wu argues that pathways of negotiating new treaties inside the WTO are not particularly feasible.86 He is optimistic that the Obama administration’s endeavors to sign mega-regional trade agreements will restrict China’s ability to utilize its unique political and economic system to its advantage in future trade with the U.S.87 However, President Trump’s reluctance to agree to trade agreements during the first half of his presidency has grounded Obama and other WTO members’ plan to prevent China’s influence, collectively. In a period of trade talks between the two countries whose outcome will influence the global economic climate, both governments’ views on the standards of international trade have become of utmost importance.

Although imperfect, the WTO system is the best solution to current and future trade disputes between its member countries. Unlike President Trump’s belief that “we lose…almost all of the lawsuits in the WTO,” the WTO has not exhibited overt discrimination against the United States. Compared to the 90 percent average success rate of bringing a complaint to the WTO Dispute Settlement Mechanism, the U.S. has prevailed in 91 percent of its cases; the U.S. won 16 of 16 cases it brought against China under the Obama administration.88 Even amidst the ongoing trade war and U.S. attempts to dismantle the Appellate Body, the U.S. triumphed in a case against China involving illegal farm subsidies in February 2019.89 One of the United States’ main issues with the WTO is the latter’s approach to China’s particular political and economic system which has prompted issues such as the “public body” debate. If contrary to Professor Wu’s belief, WTO member countries including the U.S. and China are open to negotiating additional treaty text regarding

86

Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 314 (2 ed.).

87 Id. at 315.

88 Id. 89 Bryce Baschuk, U.S. Wins WTO Dispute Over China Farm Policies, Lighthizer Says, Bloomberg.com (Feb. 27, 2019), https://www.bloomberg.com/news/articles/2019-02-27/u-swins-wto-dispute-over-china-farm-policies-lighthizer-says-jsnn6lx0.

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UCLA UNDERGRADUATE LAW JOURNAL China’s system in the future, the United States’ concern has the potential to be resolved.

Compared to China’s hesitancy to enter into WTO treaty negotiations in past years, the trade war has compelled the government to reevaluate its approach. In past months, China has expressed willingness to reach an agreement on a trade deal with the U.S. to end the trade war. After the conclusion of trade talks between the two countries in January 2019, China’s Commerce Ministry released a statement indicating the government’s readiness to reach an agreement with Washington: Compared to the U.S. statement which refrained from describing the talks, China adopted an uplifting tone by saying both sides actively implemented the important agreement of the heads of both countries, and held broad, deep, and meticulous discussions on shared observations on trade issues and structural problems, laying the foundation for addressing areas of common concern. Both sides agreed to continue to keep in close contact.90

Due to a multitude of reasons, including its inferior economic power compared to the U.S., China seems much more eager to reach an agreement than does the United States. Coupled with the fact that U.S. involvement will render the WTO ineffective in the near future, China will be more inclined to renegotiate treaties which address its unique economic model in order for international trade to return to its routine functions. Although China must take steps in order to develop trade agreements with the U.S., the WTO is also inclined to make its fair share of changes.

One issue that the WTO must promptly address is whether China will continue to be considered a non-market economy or change its status under WTO law. Although China’s economic structure has become more transparent and market-oriented since joining the WTO, it does not resemble either a market economy or any existing alternative structure.91 Before China’s admittance to the WTO in 2001, many influential academics doubted China’s 90

Charlotte Gao, Obviously, Beijing Wants to Make US-China Trade Talks Work, The Diplomat (Jan.12, 2019), https://thediplomat.com/2019/01/obviously-beijing-wants-to-make-us-chinatrade-talks-work/.

91 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 288 (2 ed.).

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THE ROLE OF THE WTO IN THE U.S. – CHINA TRADE WAR exceptionalism and projected the country’s economy to converge along the lines of other countries.92 However, contrary to these predictions, China's economy has remained a consistent issue for WTO law. The conflicts between the U.S. and China on topics such as the application of “public bodies” in the Chinese context indicate that there is urgency for the WTO to address China’s economic structure. With the concerned parties gathering in the WTO to reevaluate China’s economic exceptionalism under the lenses of international trade law, steps to end the current trade war by drafting new trade agreements and negotiating existing treaties in and outside of the WTO are foreseeable.

The U.S. and other Chinese trading partners dissatisfied with the WTO’s approach to China’s distinct economic system may also continue to develop mega-regional trade agreements such as the TPP to fragment the WTO’s authority on international trade. These agreements offer a chance to establish trade norms that the WTO has not addressed, and potentially act as barriers to China accessing the market of its trade partners. Mega-regional trade agreements also contribute to the gradual weakening of WTO’s multilateralism, as member countries would only resort to its Dispute Settlement Mechanism for a limited subset of problems. As a result, WTO officials should reflect on the WTO’s defects by examining the intentions of countries which participate in the drafting of mega-regional trade agreements. China’s trading partners are resorting to these imperfect and costly trade agreements mainly because they believe that the opportunity cost of solely abiding by WTO regulations is greater.

With China more willing to come to negotiations after the trade war, WTO members and officials should use this opportunity to forge new treaty provisions to keep the organization at the center of international trade. The WTO can also use newly emerging mega-regional trade agreements as both references for reform in the future and as methods to assess its member countries’ satisfaction.

Several Chinese academics have expressed that although the WTO is not without defects, its absence would result in a significant amount of chaos and injustice in the global economic setting.93 The U.S. - China trade war has 92 93

Id. at 289.

Interview with Qingjiang Kong, Professor, China University of Political Science and Law, in

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UCLA UNDERGRADUATE LAW JOURNAL reminded the world of the pre-WTO period when unilateral acts of trade aggression were the norm between countries. Moreover, it is evident that the major factor which contributed to the current fallout between the U.S. government and the WTO organization is the latter’s inadequacy in addressing China’s exceptional economic system. This deficiency is illustrated in controversial interpretations of “public bodies” and state-owned enterprises by the Appellate Body in U.S. - China disputes.

Throughout the course of the article, I examined U.S. measures to counter China’s influence on international trade through utilizing the WTO’s Dispute Settlement Mechanism and further noted that treaty negotiations should be devised in order to resolve the disputes between these two countries. Prior to President Trump’s decision to initiate the trade war, China’s trading partners mainly resorted to developing mega-regional trade agreements and legal concepts without Chinese involvement. These efforts diminished the centrality of the WTO to global economic governance and established fragmented pluralism with variable geometric arrangements.94 However, if the WTO capitalizes on China’s willingness to negotiate bilateral agreements with the United States and channel this understanding into renegotiating WTO regulations with all concerned member countries, the organization’s authority would observe a substantial revival. If the WTO continues to take its member countries’ concerns into account by monitoring emerging mega-regional trade agreements and modifying its own system accordingly, the global influence of the WTO will remain intact. Furthermore, this article expresses hope for the U.S. and China to resolve their trade differences and continue to maintain the WTO’s centrality in international trade for the betterment of global economics.

Beijing, China. (December 25, 2018).

Interview with Xiaoli Shi, Professor, China University of Political Science and Law, in Beijing, China. (January 8, 2019).

94 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57, Harvard International L.J. 323-324 (2 ed.).

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UCLA UNDERGRADUATE LAW JOURNAL Phillip Leung*

The Legal Argument Against Excessive Regulations on Online Vacation Rental Platforms ABSTRACT. This article evaluates the conflicts that have surfaced as a result of the recent rise in usage of residential spaces as short-term vacation rentals via online platforms such as Airbnb and VRBO. By evaluating several recent and ongoing U.S court cases, the article addresses how local cities and townships should approach regulating such short-term rentals. Cases involving individual property owners, namely, Tarr. v. Timberwood Park Owners Association, as well as corporate cases, such as Aimco v. Airbnb Inc., are discussed in order to obtain a comprehensive view of this novel issue. In doing so, this article will reveal that multiple courts seem to hold the view that short-term rentals do in fact constitute a residential use of property. With this in mind, I argue that regulations should be designed to hold property owners accountable for their tenants, rather than to discourage the outright use of platforms that facilitate short-term rentals, as imposed limitations in regard to rental duration have often suggested.

* Phillip Leung is a third-year materials engineering student at the University of California, Los Angeles. He is also a writer for the arts & entertainment section of the Daily Bruin. Phillip currently serves as a Project Manager for the UCLA student chapter of Engineers Without Borders and will continue to serve as the Vice President in the next term. He plans on attending law school in the future and will be working as an extern at the United States Patent and Trademark Office this coming summer.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction Vacation rentals facilitated by online platforms such as VRBO, HomeAway, and Airbnb have become increasingly popular in recent years. This increase in rentals has also been accompanied by heightened complaints, especially from residents of the homes neighboring rental properties. Complaints from neighbors often cite a general feeling of insecurity that stems from a lack of familiarity with short-term residents, as well as disruptive behavior from tenants, including issues with respect to noise and trash.

Current conversations regarding the regulations placed on short-term rental platforms are quite localized in nature, as the issue has only very recently been evaluated from a statewide standpoint. Regulations can vary significantly between different municipalities, and many are still in the process of being drafted and passed into law. This article will cover multiple civil court cases, most of which have undergone several appeals, and some of which have even reached state supreme courts. Analyzing these cases will be helpful in determining how courts have generally dealt with local conflicts regarding shortterm vacation rentals. The issue has gained significant traction in recent years; for instance, the Supreme Court of Texas recently ruled in favor of a vacation rental owner in Tarr v. Timberwood Park Owners Association in May of 2018.1 This article will demonstrate how ordinances that restrict the ways in which property owners can utilize platforms such as Airbnb and VRBO do not provide an ideal approach to regulating short-term vacation rentals. Section I will examine cases that have determined how short-term rentals should be defined and whether they constitute a residential usage of property. Section II will then explain why local ordinances with respect to short-term rentals in cities such as Santa Monica do not necessarily fulfill their goal of preserving and protecting housing. Section III will review instances where hosts have benefitted from using online vacation rental platforms free from restrictions without causing

1

Tarr v. Timberwood Park Owners Association, Inc., No. 16-1005, 2018 Tex. FINDLAW, (Tex. May 25, 2018).

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS harm to the surrounding community. Lastly, Section IV will offer recommendations for regulating short-term rentals in the future.

Many of the court cases reviewed in this article focus on the regulations enacted by local townships or municipalities. As such, the terms with which the different courts refer to the regulations placed on online housing platforms and the subjects they concern vary by case. In order to avoid confusion, a uniform set of terms will be used to refer to certain entities. Any local regulation that concerns the usage of a residential property will be referred to as an “ordinance.” A person that rents out his or her property using an online vacation rental platform will be referred to as a “host,” while a person that is renting said properties will be referred to as a “tenant.” Finally, any vacation or stay facilitated by an online vacation rental platform such as Airbnb or VRBO will be referred to as a “shortterm rental.”

I. Ordinances Regarding the Usage of Residential Properties A. Determining What Constitutes a Residential Use of Property I will begin by addressing a topic that is essential to the debate on online vacation rental platforms: whether short-term rentals can be considered a residential use of a property. This topic is foundational to the debate, since it concerns the legality of using residential properties for short-term rentals altogether. Multiple state court cases concerning this issue will be discussed, as well as the implications of their decisions. Many city ordinances forbid using a residential property for commercial purposes, but such ordinances are often ambiguous. This leads to many cases in which decisions are overturned multiples times as a result of varying interpretations.

In Tarr v. Timberwood Park Owners Association, Kenneth Tarr began using his home in San Antonio for short-term rentals after moving to Houston.

Timberwood Park, the local homeowners association, argued that these shortterm rentals violated local ordinances, which specified that “All tracts shall be

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UCLA UNDERGRADUATE LAW JOURNAL used solely for residential purposes.”2 They added that buildings constructed in the area were to be used as “a single family residence.”3 Timberwood Park argued that Tarr violated both of these ordinances, because (1) tenants renting Tarr’s home stayed in the home for very brief periods, rendering Tarr’s home similar to a commercial business like a hotel, and (2) Tarr’s home was often rented by parties consisting of more than one family, violating the single family ordinance. In response, Tarr argued that “residential purposes” pertained only to the tenants’ use of the property and not the duration of their stay. Tenants performed residential activities, such as sleeping, eating, and watching television on the property, fulfilling the requirement of a residential purpose. In response to the single-family residence ordinance, Tarr pointed out that the ordinance in question originated from a paragraph in the deed restrictions detailing the construction requirements of such a residence, implying that the ordinance was concerned with the type of building, rather than its usage. This interpretation is correct, as the paragraph in question states that all buildings on the tract were to be a “single family residence containing not less than 1,750 square feet, exclusive of open porches, breezeways, carports and garages,” among other restrictions regarding the building’s construction.4 The ordinance cited by Timberwood Park was analogous to a standard building code.

Ultimately, the Supreme Court of Texas ruled in favor of Tarr, overturning decisions from trial courts and the court of appeals, determining that “So long as the occupants to whom Tarr rents his single-family residence use the home for a ‘residential purpose,’ no matter how short-lived, neither their on-property use nor Tarr’s off-property use violates the restrictive covenants in the Timberwood deeds.”5 In essence, Tarr’s use of his home for short-term rentals while he was not currently a resident (living off-property) was within his rights

2

See Id. See Id. 4 See Id. 5 Emma Platoff, Texas Supreme Court Sides with Short-Term Renters, Likely Bolstering State’s Fight Against Austin’s Ordinance, THE TEXAS TRIBUNE, (May 25, 2018, 11:00 AM), https://www.texastribune.org/2018/05/25/airbnb-homeaway-texas-supreme-court-ken-paxtonaustin-ordinance/.

3

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS as a property owner. The court’s decision found that Timberwood Park’s interpretation of the local housing ordinances was too far-reaching. Specifically, they ruled that Timberwood had attempted to combine two distinct ordinances, one mandating residential purposes and the other specifying building requirements, in order to justify a single interpretation of ‘residential purpose’ that was too strict on property owners and beyond the scope of what the two original ordinances specified.6 Put simply, Timberwood Park had overstepped its powers to regulate short-term rentals.

Tarr v. Timberwood Park Owners Association ended with a final decision from the Texas Supreme Court on the definition of a “residential purpose,” which the local ordinances admittedly left quite ambiguous. Arguing against shortterm vacation rentals due to the transient nature of the renters’ stay is questionable, since there is not necessarily a direct relation between the length of a tenant’s short-term rental and how the tenant utilizes the property. As Tarr argued, the ways in which his tenants use the property are still ‘residential,’ seemingly rendering the duration of their stay irrelevant. Granted, one might argue in favor of regulations with respect to length-of-stay on grounds that a tenant that intends to stay in a home for two days has good reason to act differently from a tenant that intends to stay for two years; however, while a certain level of regulation on vacation rental platforms is justifiable, basing these regulations on ambiguous ordinances can lead to an overreach of power or convulsion of existing laws as seen in Tarr v. Timberwood Park Owners Association.

Despite the ruling in Tarr v. Timberwood Park Owners Association, the use of platforms such as Airbnb and VRBO to facilitate short-term rentals does share many qualities with commercial businesses, such as hotels and other forms of transient lodging. The question of whether short-term rentals of homes can be considered a commercial use on behalf of the host remains unanswered in certain states. Slice of Life LLC v. Hamilton Township Zoning Board was heard by the Supreme Court of Pennsylvania in December 2018, and will issue a decision

6

See Id.

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UCLA UNDERGRADUATE LAW JOURNAL this year.7 At the center of the case is a scenario similar to that of Tarr v.

Timberwood Park Owners Association, with Val Kleyman, owner of Slice of Life LCC, initially being cited for violating Hamilton’s zoning ordinances when he used a residential property for short-term rentals.8 Ambiguity proved to be an issue once again, as Kleyman argued that the local ordinances did not contain any statement explicitly prohibiting short-term rentals. The Hamilton Township Zoning Board cited Kleyman, however, on the basis that homes occupied by various tenants over a short period of time cannot constitute a “single-family dwelling,” likening them to the activities of a transient lodging business.9 Furthermore, the Zoning Board also added that, because Kleyman's primary motivation for renting out his property was profit, the use of his property for short-term rentals constituted a commercial usage. Use of a residential property for commercial purposes is not permitted by Hamilton Township.

Trial courts initially ruled in favor of the Hamilton Township Zoning Board, but the Commonwealth Court of Pennsylvania—one of the state’s intermediate appellate courts—overturned said ruling. The Commonwealth Court stated that the zoning board’s argument that there exists a “substantial relationship between using the Property for short-term tenancies and the health, safety, and welfare of the public” was not supported by substantial evidence, and thus, the zoning board had abused its interpretation of the zoning ordinances when citing Kleyman.10 It is important to note the Commonwealth Court’s focus on the public’s health, safety, and welfare. This emphasis implies that for a short-term rental to be considered problematic, an objective detriment to the surrounding

7

Caitlin McCabe, What Will a Pa. Supreme Court Decision Mean for Regulating Sites like Airbnb?, THE INQUIRER PHILLY.COM, (Updated December 10, 2018), http://www.philly.com/realestate/pennsylvania-supreme-court-case-airbnb-home-sharing-regulation-hamilton-slice-of-life20181210.html.

8 Slice of Life, LLC and Val Kleyman v. Hamilton Township Zoning Hearing Board and Hamilton Township, No. 941 C.D. 2016, 2017 Pa. Commw. Ct. FINDLAW (Pa. Commw. Ct. June 21, 2017), https://caselaw.findlaw.com/pa-commonwealth-court/1865174.html.

9 See Id. 10 See Id.

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS community needs to be well-substantiated. Determining what constitutes an “objective detriment” requires an explanation of nuisances in a legal context.

B. An Analysis of Nuisances Concerning Ordinances Against Short-term Rentals In order to better under the Commonwealth Court’s reasoning in Slice of Life LLC v. Hamilton Township Zoning Board, I will explain how nuisances in residential communities are legally defined. Most complaints filed against tenants by local neighborhoods fall under the legal definition “nuisance” which reads as follows: “the unreasonable, unwarranted and/or unlawful use of property, which causes inconvenience or damage to others, either to individuals and/or to the general public,” with public nuisances affecting the public at large.11 Currently, two categories of nuisances have been established: nuisance per se and nuisance per accidens. A nuisance per se remains a nuisance regardless of the circumstances.12 For instance, a power plant that is emitting noxious fumes to a nearby community would be a nuisance per se, since the fumes will always pose a definite danger to the nearby residents, no matter where the community is located. A nuisance per accidens, on the other hand, addresses complaints that are much less objective, as their validity often depends on the given circumstances.13 Given the varied nature of housing regulations throughout the U.S., complaints made by permanent residents regarding disruptive behavior from vacation renters, such as complaints about noise and trash, would fall under the category of nuisance per accidens, since what is considered to be ‘too noisy’ or ‘too dirty’ is a matter of personal opinion. Additionally, some of these complaints do not arise directly as a result of the renter utilizing a vacation-rental or lodging platform—noise complaints, for example, may arise even in cases of 11

LAW.COM (database updated 2019), https://dictionary.law.com (search “nuisance”), https://dictionary.law.com/Default.aspx?selected=1358.

12 Nuisances Per Se, USLEGAL, https://nuisances.uslegal.com/types-of-nuisances/nuisancesper-se/.

13 Per Accidens Nuisance Law and Legal Definition, USLEGAL, https://definitions.uslegal.com/p/per-accidens-nuisance/.

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UCLA UNDERGRADUATE LAW JOURNAL long-term or permanent residential property usage. In the case of Slice of Life LLC v. Hamilton Township Zoning Board, the Commonwealth Court determined that Kleyman’s short-term rentals did not qualify as nuisance per se, in that they did not pose an objective threat to the safety and health of the local community.

In summary, as was the case in Tarr v. Timberwood Park Owners Association, the Commonwealth Court found that the Hamilton Township Zoning Board’s interpretation of the ordinances was not supported by the language of the ordinance, and therefore, the Hamilton Township Zoning Board overstepped its bounds in attempting to curtail Kleyman’s use of his property. Other communities should follow the precedent set by this case such that ordinances against short-term rentals are based on nuisance per se, rather than nuisance per accidens. In doing so, communities will not run the risk of overstepping their powers in attempts to regulate short-term rentals. Furthermore, the meaning of “residential purposes” is ambiguous, thus, in attempting to regulate short-term rentals on the basis of residential usage, communities have sometimes lacked focus on how short-term rentals genuinely impact them. To avoid this, communities should focus on evaluating the effects of short-term rentals on the public neighborhood rather than debating the definition of a residential purpose, as specified in the Commonwealth Court of Philadelphia’s decision. In cases where the meaning of “residential purposes” is at issue, such a term should be interpreted to prevent infringement on hosts’ rights with respect to the usage of their homes.

II. Eliminating Ambiguity in Housing Ordinances Arguments in favor of regulating short-term vacations rentals often overreach because they impose narrow definitions of what constitutes a residential usage, which inherently encompasses a broad spectrum of activities.

As seen in the previous two cases, such arguments typically fail since the language of local ordinances is not specific enough to truly support their claims.

Subsequently, townships have cited the disruptive nature of short-term rentals to the surrounding neighborhood as justification for the imposition of more specific restrictions on platforms such as Airbnb and VRBO, which this section

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS will further discuss. Such regulations are more difficult to resist compared to open-ended ones, since townships are within their limit to adjust local ordinances as they see fit. For instance, the Commonwealth Court’s decisions in Slice of Life LLC v. Hamilton Township Zoning Board noted that while the current ordinances did not justify Kleyman’s citations, the township could easily modify its ordinances to be more restrictive towards short-term vacation rentals.

Multiple cities and towns have already instituted more specific regulations to eliminate ambiguity in their ordinances. For example, the cities of Huntington Beach and Los Angeles have both imposed specific regulations on short-term rentals. Each city’s regulations, however, vary greatly from one another. While Huntington Beach imposes a minimum rental period of 30 days,14 Los Angeles stipulates that hosts can only rent out their properties for 120 days out of the year, with additional fees required to register as a short-term rental host with the city, and to accommodate stays of less than 30 days.15 Additionally, short-term rental properties in Los Angeles must be the primary residence of the host, defined as living on said property for at least six months of the year.16 Among the most restrictive and contentious short-term rental regulations are those of the City of Santa Monica, which maintains a separate set of ordinances from that of Los Angeles. Rentals without a host are permitted for stays longer than 30 days, while rentals that are 30 days or less require the host to be living on the property during the tenant’s stay.17

14

City News Archive, Short-Term Vacation Rentals Prohibited in Huntington Beach, CITY OF HUNTINGTON BEACH CALIFORNIA, September 28, 2015, https://www.huntingtonbeachca.gov/announcements/announcement.cfm?id=917.

15 Emily Alpert Reyes, Los Angeles Moves to Regulate Airbnb Rentals, LOS ANGELES TIMES (May 2, 2018 1:30 PM), https://www.latimes.com/local/lanow/la-me-ln-airbnb-vote-20180502story.html.

16 Emily Alpert Reyes, L.A. Approves New Rules for Airbnb-Type Rentals After Years of Debate, LOS ANGELES TIMES (December 11, 2018 5:45 PM), https://www.latimes.com/local/lanow/la-meln-airbnb-rental-ordinance-20181211-story.html.

17 Santa Monica, CA, Airbnb Help Center, AIRBNB.COM (last visited 15 Feb. 2019), https://www.airbnb.com/help/article/908/santa-monica--ca.

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UCLA UNDERGRADUATE LAW JOURNAL In HomeAway.com Inc. & Airbnb Inc. v. City of Santa Monica, the two online vacation rental platforms argued that Santa Monica’s home-sharing ordinances were unlawful, to which the United States District Court for the Central District of California responded with a dismissal, ruling in favor of the City of Santa Monica.18 HomeAway and Airbnb attempted to argue that Santa Monica’s ordinances violated various federal laws, including the Communications Decency Act, various amendments of the U.S. Constitution, and the California Coastal Act. The court dismissed all claims on the following bases: 1)

The Communications Decency Act concerns the lawfulness of content published online (a notable example is pornography), while Santa Monica’s ordinances are concerned with lawfulness of transactions facilitated online.

Thus, online vacation rentals are not protected by the Communication

2)

Decency Act.19 The First Amendment regulates speech, not conduct. Since Santa Monica’s ordinances concern conduct, the First Amendment does not protect transactions on Airbnb and VRBO.20

3)

Airbnb and VRBO argued the ordinances violated the Fourteenth Amendment in that property owners could be cited without “proof of mens rea or scienter,” meaning knowledge or intent of a crime. The court dismissed this complaint based on past cases that determined mens rea or scienter is an implied requirement for establishing criminal liability, even if it is not explicitly stated in the ordinance.21

4)

The ordinances also specified that the online platforms were to disclose information when requested, such as the names of the host, the address of property, and duration of stay, which Airbnb and VRBO argued was in violation of the Fourth Amendment. The court dismissed these claims by concluding that the ordinances allowed for online platforms to review administrative subpoenas for information.22

18

City of Santa Monica Prevails Against Airbnb and HomeAway, CITY OF SANTA MONICA (March 12, 2018), https://www.santamonica.gov/press/2018/03/13/city-of-santa-monica-prevailsagainst-airbnb-and-homeaway.

19HomeAway.com, Inc. v. City of Santa Monica, No. 16-6641, Airbnb, Inc. v. City of Santa Monica, No. 16-6645, 2018 U.S. Dist., at 7 (C.D. Cal. June 14, 2018), https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2752&context=historical.

20 See Id. at 11 21 See Id. at 12 22 See Id. at 13

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS 5)

Since all of Airbnb and VRBO’s claims regarding federal laws were dismissed, the court dismissed claims regarding the California Coastal Act with the justification that since all federal claims were dismissed, all state claims, such as those regarding the Coastal Act, should be dismissed as well.23

Although the district court found the claims that Santa Monica's ordinances were in violation of federal law to be unsubstantial, the case still does not address the main reason for the ordinance: to prevent the disruptive impact of shortterm rentals on the community. Santa Monica’s city attorney Lane Dilg stated that the policies are designed for “producing, protecting, and preserving housing.”24 Arguments from the previously reviewed cases attempt to accomplish these goals by asserting that short-term rentals do not qualify as a residential usage according to local ordinances. However, such arguments tend to be overly restrictive when time and intent-based limitations on what defines residential usage are not explicitly stated in the housing ordinance, as was the case in Tarr v. Timberwood Park Owners Association when the Timberwood Park Owners Association attempted to use two loosely related ordinances to justify restrictions on short-term rentals. Some cities, including Los Angeles and Santa Monica, have addressed this issue with more specific ordinances, but they have yet to justify how such regulations are successful in protecting housing.

Ordinances such as Santa Monica’s 30 day minimum for unhosted rentals are not inherently unfair but appear rather arbitrary when considering the ordinances’ purpose of protecting the public. On the contrary, the decision in Slice of Life LLC v. Hamilton Township Zoning Board supports the premise that short-term vacation rentals do not pose an inherent danger to a community’s safety or health. If a city council wishes to impose punitive ordinances on hosts’ usage of platforms such as Airbnb and VRBO, it must produce substantial reasons for doing so in order to avoid infringing on the rights of owners, as was the case in Aimco v. Airbnb, which will be discussed in the following section.

23

See Id. at 15 Loses Latest Court Battle Over Santa Monica’s Strict Rules, SANTA MONICA DAILY PRESS (June 18, 2018 6:57 AM), https://www.smdp.com/airbnb-loses-latest-court-battle-over-santamonicas-strict-rules/166918.

24Airbnb

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UCLA UNDERGRADUATE LAW JOURNAL III. Finding A Middle Ground The court cases reviewed thus far have demonstrated a clear conflict between local townships and supporters of online vacation rental platforms.

This debate, however, does not necessitate a clear winner or loser; compromises can be made to benefit both townships and hosts. The Apartment of Investment and Management Co. (Aimco) had an ongoing lawsuit against Airbnb that was recently settled in December of 2018.25 This case focused on the clash between online vacation rentals and traditional housing leases. Though the terms of the settlement were not disclosed to the public, prior decisions from U.S. District Courts provided some useful insights. In Aimco v. Airbnb (California), the U.S. District Court for the Central District of California dismissed Aimco’s complaints that Airbnb’s platform facilitated violations of lease agreements, due to hosts using the platform to enable short-term rentals. Interestingly, the claim was dismissed under the justification of the Communications Decency Act, the same act that was dismissed in HomeAway.com Inc. & Airbnb Inc. v. City of Santa Monica. The district court specified that the Communications Decency Act protected Airbnb from users that conducted unlawful rentals on its platform, with U.S. District Judge Dolly Gee stating that “Airbnb hosts, not Airbnb, are responsible for providing the actual listing information.”26 The reason why the Communication Decency Act protected Airbnb in this case is because Aimco’s complaint was framed such that Airbnb was responsible for hosts advertising unlawful listings on its site. Meanwhile, Santa Monica's home-sharing ordinances focused on preventing unlawful transactions facilitated through Airbnb, rather than the listings published through Airbnb. To this end, Airbnb's claim in HomeAway.com Inc. & Airbnb Inc. v. City of Santa Monica that the Communications Decency Act was being violated did not apply, and therefore

25

Ben Lane, Airbnb Settles with Aimco After Being Accused of Allowing Illegal Short-Term Rentals, HOUSINGWIRE (December 11, 2018), https://www.housingwire.com/articles/47678-airbnbsettles-with-aimco-after-being-accused-of-allowing-illegal-short-term-rentals.

26 La Park La Brea, et al. v. Airbnb, Inc., et al., No. 17-4885, 2017 U.S. Dist. SCRIBD (C.D. Cal. December 29, 2017), https://www.scribd.com/document/368274812/Aimco-v-AirbnbCalifornia.

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS was unfounded. Either way, both cases imply that responsibility of managing short-term rentals should be the burden of the host, not the rental platform.

While Aimco’s lawsuit against Airbnb in California was dismissed, Aimco still had an ongoing case in Florida, with plans to appeal the California case.

Aimco’s lawsuit in Florida revolved around conflicts similar to that of the California case, where Airbnb argued that it is not responsible for hosts violating their leases with Aimco. While Aimco’s case in California was dismissed, a Miami judge ruled against dismissal for the Florida case.27 In December 2018, however, both companies settled. No details of the settlement were disclosed, though both companies released a statement specifying that the agreement “provides Aimco with the ability to control short-term rental activity consistent with its contract and property rights.”28 Similar to the other cases discussed in this article, this statement implies that Aimco must set specific regulations regarding short-term rentals and adhere to them without overstepping its boundaries.

This settlement between Aimco and Airbnb sets a precedent which suggests that short-term rental companies and local communities can reach a mutually beneficial agreement with one another. While short-term rental platforms should not be completely free from regulations, regulations should be stipulated such that they respect the rights of hosts opting for short-term rentals of their homes, as well as the rights and expectations of surrounding communities and neighborhoods. In order to be justified, the regulations need to remain fair and substantially supported to benefit the community. Instead of instituting statutes that obstruct short-term vacation rental platforms such as Airbnb and VRBO, cities should design their regulations to benefit both the community and the hosts.

27Chabeli

Harrera, Airbnb Tried to Get a Miami Lawsuit Against a Major Landlord Thrown Out. A Judge Said No., MIAMI HERALD (July 13, 2018 2:40 PM), https://www.miamiherald.com/news/business/article214833115.html.

28 Ben Lane, Airbnb Settles with Aimco After Being Accused of Allowing Illegal Short-Term Rentals, HOUSINGWIRE (December 11, 2018), https://www.housingwire.com/articles/47678-airbnbsettles-with-aimco-after-being-accused-of-allowing-illegal-short-term-rentals.

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UCLA UNDERGRADUATE LAW JOURNAL IV. How Regulations on Short-term Rentals Should Proceed Based on the cases reviewed in this article, the issue of short-term vacation rentals remains a grey area, with many communities maintaining different perspectives. Despite this ambiguity, there are some insights that communities ought to consider in order to approach online platforms and the property owners that use them fairly and judiciously.

First, any regulation placed on the use of platforms such as Airbnb and VRBO for short-term rentals should be specific and concise. Otherwise, local communities risk overstepping their power and extrapolating existing laws when citing hosts for violating ordinances. Tarr v. Timberwood Park Owners Association and Slice of Life LLC v. Hamilton Township Zoning Board demonstrate that local communities can only do so much to regulate short-term rentals if their ordinances do not lay out explicit rules for their adjudication. As noted in the Commonwealth Court’s decision in Slice of Life LLC v. Hamilton Township Zoning Board, even though the township’s current ordinance did not explicitly mention or address the nature of short-term rentals, there is nothing to prevent the township from modifying the ordinance to include such regulations. Still, city councils and governments should also not have free reign to impose any arbitrary restriction they wish on short term rentals. Any established regulation on the use of online vacation rental platforms must serve to address or prevent a specific problem that poses an objective danger to the community's health and wellbeing–a problem that falls under nuisance per se.

The approach cities often take towards passing regulations on short-term rentals usually revolves around the duration of a tenant’s stay, as is the case in cities such as Los Angeles and Santa Monica. Such an approach aims to prevent transient stays that neighboring residents may find disruptive. Unfortunately, the question of what is ‘too transient’ for short-term rentals will always arise, leading to differing interpretations and, thus, inconsistent regulations. Instead of focusing on issues that will remain contentious such as the allowed duration of a tenant’s stay, regulations should be focused on the actions of tenants and the responsibility of hosts. As an incentive to rent their properties to undisruptive tenants, hosts must be held responsible for their tenants’ actions.

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THE LEGAL ARGUMENT AGAINST EXCESSIVE REGULATIONS ON ONLINE VACATION RENTAL PLATFORMS If a tenant creates an illegal disruption that genuinely impacts the surrounding community such as a nuisance per se, any fines or citations that result will be the host’s burden. If the problems continue, the punishments can increase in severity to further persuade hosts to select tenants better suited for the community. Subsequent punishments could include increased fines or even the aforementioned restrictions on the duration of a tenant’s stay. This approach to regulating online housing platforms leaves room for the local municipality to step in, should a host’s usage of property for short-term rentals become problematic, while also granting leeway to hosts to use their homes as they please. Such an approach protects the safety of the community, while allowing its residents to benefit from the properties they own.

Conclusion With the rise of online platforms such as Airbnb and VRBO, property owners have started to lease out their homes on a short-term basis. Local communities have been unsure in how to respond to this newfound usage of property, with many locales establishing strict regulations on how properties can be used for such short-term rentals. The cases reviewed in this article have addressed a wide range of issues, in various jurisdictions, uncovering some useful insights. Most courts agree that attempting to designate short-term rentals as a commercial activity—as opposed to residential—is ineffective, as placing restrictions on the duration of a tenant’s stay or the intention of their stay results in an unfair labelling of “residential usage.” Still, this issue remains controversial; the fact that regulations can vary greatly according to location implies that local communities and government are still unsure of the best way to approach the issue. Recent court decisions shave made clear that hosts ought to be protected, and that local communities cannot arbitrarily abuse powers to prevent short-term vacation rentals. That is not to say, however, that short-term rentals should not be regulated. Property owners should be held responsible if their tenants prove to be objectively problematic to the surrounding community.

This individualized approach to short-term vacation rentals will ensure that

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UCLA UNDERGRADUATE LAW JOURNAL platforms such as Airbnb and VRBO are used within reason, while also protecting property owners and hosts from excessive restrictions.

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