Vol. 8 Fall/Winter 2020 Issue by Wellesley College Pre-Law Society

VOLUME 8

[2020] Fall/Winter

THE

WELLESLEY LAW JOURNAL

February 2021

CONTENTS LETTER FROM THE COMMUNITY Letter from the Presidents 4

Letter from the Editors 6

COVID-19 Education During a Pandemic: California Public Schools and Technology

EMAN KHATRI ’23

The Hidden Epidemic: Covid-19 and Domestic Violence

HAYLEY MONIZ ‘22

Pandemic Trials and Tribulations: Protecting Abortion Rights in Texas

PAIGE WHITE ‘22

Pandemic History Lessons: What the Past Can Teach Us About Covid-19

SHARLEEN GARCIA ‘21

CRIMINAL LAW Solitary Confinement Reform in California: An Executive Approach

MAREN FRYE ‘23

A Judicial Framework to Abolish the Death Penalty in the United States

JULIANNE GRIFFIN ‘21

Reimagining Criminal Justice: The Restorative-Transformative Model NIA GOODRIDGE ‘21

EDUCATION Stripping Democracy to Raise Test Scores: A School Receivership Case Study

TIANA BROTE ‘21

An Open Letter to Boston's K-12 Schools: The Need for Ethnic Studies

WENYIN CAO ‘23

Increasing the Representation Of Low-Income High-Achievers at Elite Colleges

FATIMA DJALALOVA ‘24

CIVIL RIGHTS AND CIVIL LIBERTIES The Threshold of Humanitarian Intervention for Religious Persecution

NECHAMA HUBA ’23

The Right to Protest: The Legacy of Tinker Et Al. V. Des Moines

CARRINGTON PARKS ‘24

Religious Tolerance in the Law: The Usage Of Sharia’a Law in U.S. Courts

CLARA SHANABROOK ‘23

Privacy Past and Present: The Supreme Court and Justice Brandeis’ Legacy

NERINE UYANIK ‘24

GENDER Investigating Histories of Gender Discrimination in U.S. Immigration Law

RUBY SHEALY ‘22

A Tale of Two Administrations: Transgender Military Rights, 2008-2020

102

REBECCA ZLATKIN

Submerged State: How the Office of Civil Rights Transformed Title IX PAIGE DEAN ‘23

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LETTER FROM THE PRESIDENTS February 15, 2021

There is not enough space to describe the many experiences, changes, and obstacles our members and executive board have confronted in the transformative year of 2020. Yet, there leaves one word that speaks adequately of Pre-law’s response to 2020: resiliency. As Presidents of Wellesley College Pre-Law Society, we are honored and thankful to uphold our organization’s mission in administering to Wellesley’s legal community. It is a pleasure to lead alongside our executive board in bringing together a community during a time where most are apart, in hosting events that educate and serve students in the most competitive law school cycle, and in collaborating with Career Education’s Nicole Park and the Wellesley’s Lawyer Network to share insights and resources. It is due to the resilient nature of Wellesley students that we have grown our organization’s membership to over 230 students. Perseverance has been why we could host traditional events like “Tea with a Lawyer” and “Movie Night.” The reason we could work alongside Nicole Park to bring new and exciting events such as “Law School Week” has been the tenacity and passion everyone has shown. The Wellesley College Pre-Law Journal is one of our largest projects every semester, and we are thrilled for its 6th publication this Fall. We would like to thank all of the student contributors, our amazing Law Journal editors, Emily Spaulding and Grace Woo, for their efforts in producing the final product, as well as thank all members of E-board who assisted in the process. Going forward into spring, we plan to introduce our first ever LSAT course and Honorarium speaker, and host the beloved events of “Tea with a Law Student” and “Movie Night.” As always, students should expect another edition of the Law Journal this coming Spring. We will continue to work with Career Education and the Alumnae Network to spark discussions, make connections, and educate students about opportunities in the legal field. On behalf of the PreLaw Society Executive Board, we extend our thanks to Wellesley Career Education, Nicole Park, Christina Breiter, and the Wellesley Lawyers’ Network for a successful semester. We hope to bolster our continuously growing presence on campus and beyond, and invite you to join our community.

All the best, Devin Dowling ‘21 and Jenn Yu ‘22 2020-21 Co-Presidents

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LETTER FROM THE EDITORS February 15, 2021

We are thrilled to announce the publication of the Fall/Winter 2020 volume of the Wellesley College Pre-Law Society Law Journal. The events of the past year have initiated global conversations on topics related to law and policy, including the management of the COVID-19 pandemic, mobilization for racial justice, and responses to the 2020 U.S. Presidential Election and its aftermath. Given that these events have introduced new challenges for the Wellesley community, we are proud to release one of the largest volumes of the Pre-Law Society Law Journal in recent years. This publication includes the work of Wellesley students on campus and off campus, taking classes in-person and virtually, navigating the pandemic in the United States and elsewhere in the world. Due to the pandemic, some of these articles were written with less access to resources, peer collaboration, and in-person faculty supervision than would normally be available during the fall semester and wintersession at Wellesley. Our classmates have truly risen to the challenge. In reading these articles, we are reminded of our student body’s ability to overcome obstacles and remain focused on the pursuit of justice. When Wellesley students critically engage with legal scholarship and investigate new policy ideas, they are better equipped to respond to the needs of their communities and dedicate their talents to public service. We hope these articles provide fresh perspectives and inspiration for the Wellesley community as we recommit ourselves to the motto “Non Ministrari sed Ministrare.”

Sincerely, Emily Spaulding ‘21 and Grace Woo ’23 2020-21 Editors

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EDUCATION DURING A PANDEMIC: CALIFORNIA PUBLIC SCHOOLS AND TECHNOLOGY BY EMAN KHATR I Introduction Due to school closures in California, approximately 685 school districts and 1,131 charter schools are learning remotely this year (Lambert 2020). As remote and hybrid learning becomes the norm, education equity gaps are becoming increasingly apparent. In March, 20% of California students did not have home internet access (Johnson 2020). Low-income, Black, and Hispanic students are put at a disadvantage. Predictions show that “Black students may fall behind by 10.3 months, Hispanic students by 9.2 months, and low-income students by more than a year. We estimate that this would exacerbate existing achievement gaps by 15 to 20 percent” (Dorn 2020). The emotional learning and mental wellbeing of students is also being neglected during the pandemic. A Brown University study showed that 57% of students rely on mental health services provided through their school (Golberstein 2020). This pandemic has caused unprecedented education challenges for disadvantaged students. These challenges give us an opportunity to make education more accessible to students with varying academic and emotional needs. This is an opportunity to invest in a strong California public school technology system. To achieve this outcome, I argue that the California Department of Education should partner with local libraries across the state, invest in new teaching strategies, and provide telemental health services for students. Libraries California public schools can gain from partnering with public libraries to offer internet access, computer and book use, and a quiet learning environment. Libraries across the state provide 24.1 million ‘uses per year’ through public internet computers. The state’s 1,128 libraries spend over $150.1 million on improving their physical and digital collections (California Library Statistics FY 2018-2019). Libraries need to be seen as education hubs. The PEW Research Center reports that “31% of those living in homes whose annual incomes are $30,000 or less have used… online resources at the library” (Horrigan 2015). Free, public online resources have gained importance during COVID-19. The state can provide guidelines for timings and social distancing guidelines each time a student enters a public library, but it is important that the school districts themselves work with public library leadership to identify specific needs. For example, a school district in Wisconsin identified the need to educate students on how to navigate new technologies. The public library was able to provide ‘technology help days’ to fill this gap (Duxter 2020). To manage the predicted 12 week delay in laptop and hotspot distribution, California’s public libraries should step in to give students the resources they need to learn.

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New Teaching Strategies for Teachers The state of California can increase the effectiveness of remote learning by understanding the advantages and disadvantages of education technology. According to J-PAL’s Education Technology Evidence Review Research, online classes and the expansion of technology in classrooms do not show significant improvements in education, but computer-assisted learning can. J-PAL analyzed thirty studies on computer-assisted learning and twenty of those had positive, significant impacts for students. Computer-assisted learning is more targeted. This targeted learning can help teachers teach more effectively. Sanjay Sarma, MIT’s vice president for open learning, provides insight into some teaching strategies that may help California teachers. Based on magnetic resonance images or MRIs studied by Sarma, the most important teaching techniques are repetition and ‘reloading’. Repetition can be created through homework, mini quizzes, and Zoom recording replays. ‘Reloading’ can occur during office hours, a time when teachers can ask critical thinking questions that may throw a student off so that they must ‘reload’ past knowledge to apply it to a new circumstance (Chandler 2020). This research builds upon the idea that student feedback and meta-cognitive learning, a student’s ability to learn actively, are important (The Economist 2016). Using these models, teachers can reinforce concepts virtually and through smaller assignments while also opening office hours for students who need additional support. Telemental Health Mental health and academic achievement are linked. We know that “adolescents in racial and ethnic minority groups, with lower family income, or with public health insurance were disproportionately likely to receive mental health services exclusively from school settings. (Golberstein 2020). With school closures, California’s school-based health centers cannot serve students. Therefore, we must invest in telemental health. Telemental health has proven to be as effective as in person mental health services. During COVID-19, 18% of Americans report experiencing nervousness or anxiety in the past week. Usually, when there is not a global pandemic, that percentage is about 9%. Data regarding the mental health of young children has not been widely published. However, the PEW Research Center provides insights on how younger and low income Americans are experiencing higher psychological distress at this time (Keeter 2020). Creating a telemental health infrastructure now can bring better learning outcomes for students with varying emotional needs. Conclusion Remote learning during COVID-19 has exacerbated current inequities in education. Since the beginning of the COVID-19 pandemic, the California Department of Education has taken steps to increase access to technology by partnering with private entities to provide internet hotspots and devices. California can now lead the way in creating sustainable technology infrastructure that supports students during the pandemic and provides supplemental support beyond the pandemic. Libraries and remote teaching strategies are useful for building cognitive

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skills outside a physical classroom. Telemental health provides non-cognitive support so that students can better focus on school. Building this technology infrastructure can help bridge education gaps that occur outside of the classroom.

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References Dorn, Emma. “COVID-19 and Student Learning in the United States: The Hurt Could Last a Lifetime.” McKinsey & Company, 1 June 2020. Duxter, Adam. “School District of Beloit Helping to Get Students Struggling with Virtual School Back Online.” Channel3000.Com, 9 Oct. 2020. Chandler, David “A Scientific Approach to Education Reform.” MIT News | Massachusetts Institute of Technology, 18 Aug. 2020. Golberstein, Ezra, et al. “Coronavirus Disease 2019 (COVID-19) and Mental Health for Children and Adolescents.” Adolescent Medicine | JAMA Pediatrics | JAMA Network, JAMA Pediatrics, 14 Apr. 2020. Horrigan, John. “Chapter 1: Who Uses Libraries and What They Do at Their Libraries.” Pew Research Center: Internet, Science & Tech, 15 Sept. 2015. Johnson, Sydney. “Thousands of California Students Still without Laptops and Wi-Fi for Distance Learning.” EdSource, 7 Apr. 2020. Keeter, S. “People financially affected by Coronavirus Outbreak are Experiencing more Psychological Distress Than Others.” Pew Research Center, 27 Jul. 2020. Lambert, Diana. “Governor’s Order Means Most California School Campuses Won’t Reopen at the Beginning of School Year.” EdSource, 17 July 2020. Simmons, Dena. “Why COVID-19 Is Our Equity Check.” An Educational Leadership Special Report, ASCD, 2020. “California Library Statistics: California State Library (FY 2018–19 Data).” California State Library, The State Library. Accessed 12 Oct. 2020. “Will Technology Transform Education for the Better?” Abdul Latif Jameel Poverty Action Lab (J-PAL), J-PAL’s Education Technology Evidence Review, 2019. “Education Reform: Teaching the Teachers.” The Economist, 11 June 2016. “Health and Academics.” Centers for Disease Control, 13 Aug. 2019. “Data and Statistics on Children’s Mental Health.” Centers for Disease Control, 15. Jun 2020.

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THE HIDDEN EPIDEMIC: COVID-19 AND DOMESTIC VIOLENCE BY HAYLEY MONI Z In March 2020, at the onset of the COVID-19 pandemic in the United States, statewide lockdowns and stay-at-home orders or advisories found the majority of Americans consigned to their homes for the safety of themselves and those around them. While this strategy was useful in some states for the management of the outbreak, it created a very dangerous situation for people who live with abusive partners. Stressful situations trigger high levels of abuse. Consequently, domestic violence became a more prevalent threat as many families faced a loss of income, increased time around family members, and the loss of family members to the virus. Sociologists have noted in the past that instances of domestic violence rise “whenever families spend more time together, such as the Christmas and summer vacations” (Taub 2020). Thus health professionals have a justifiable concern over domestic abuse cases rising over the course of the pandemic. As the stay at home guidance persisted, states searched for ways to best support people who might be struggling with domestic violence. In Massachusetts, Attorney General Maura Healey compiled a list of resources for victims of violence to help them navigate living with their abusers during the COVID-19 crisis. Healey also joined 23 other Attorneys General (Ags) in asking the Senate to reinstate the Violence Against Women Act (VAWA). VAWA expired in 2019 and while it received a passing vote from the House of Representatives, it has not received consideration in the Senate (Ferguson 2020). VAWA, originally signed into law by President Bill Clinton in 1994, has an oscillating history. Part of the statute was struck down as unconstitutional by the Supreme Court in United States v. Morrison and the law has gone through an ebb-and-flow of expiration and reinstatement by the legislature (Ferguson 2020). In their letter, the Ags cite VAWA as a comprehensive way to protect those who are “uniquely vulnerable to violence and abuse” including women of all colors and transgender people. However, the bill that once received bipartisan support in both houses of Congress is unlikely to reach the Senate floor. Votes rarely cross party lines and with many senators up for re-election, politicians are unlikely to vote on controversial bills that might jeopardize their seat. It is unfortunate and troubling that protecting women and other marginalized groups is somehow seen as too sympathetic to the other side of the aisle. The New York Times has called domestic violence during COVID-19 a “hidden epidemic” (Lee and Kelley 2020). It is a crisis within a larger crisis and is often overlooked because the gravity of the virus has overtaken much of daily news reporting. The burden of the domestic violence epidemic is often only visible to hotline workers. Domestic violence crisis centers reported a spike in calls as communities entered and remained in a state of lockdown. There are many obstacles currently facing survivors of abuse, especially call center operators working under varying conditions and the court system operating at limited capacity. These barriers, combined with an inability for victims to distance themselves from their abusers, allow an often invisible crisis to grow. Victims feel isolated from the coping techniques and safety measures that protected them before the pandemic.

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It would be beneficial to continue making statewide domestic violence resources more publicized and less stigmatized. I agree with the Attorney Generals’ decision to sign on to the letter to Senate Majority Leader McConnell and other Senate leadership. Even if the pressure is not enough to bring VAWA to a vote on the Senate floor, it is important to continue advocating for the safety and support of people who lack the privilege of feeling safe while staying at home. Amanda Taub, writing for the New York Times, issues a harrowing warning: “Eventually the lockdowns will end. But as the confinement drags on, the danger seems likely to intensify. With Covid-19 ravaging the economy, such crises are set to become much more frequent” (2020). She’s absolutely correct. Stay at home mandates offer abusers personally turbulent situations and unprecedented access to control. At some indeterminate point in the future, society will return to what it was. The trauma of domestic violence, however, will not fade away. States that have made it easier for victims of abuse to access restraining orders and other forms of legal action should continue to make those resources widely available. Mental health resources should be expanded and efforts to destigmatize them should be set in motion. The Violence Against Women Act should be considered for reinstatement because it means closing loopholes and protecting populations that have been more vulnerable during this pandemic than ever before.

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References Ferguson, Bob. “Request to Reauthorize the Violence Against Women Act.” Received by Mitch McConnell, Lindsay Graham, Charles Schumer, and Dianne Feinstein, Office of the Attorney General of Washington, 4 May 2020, Olympia, Washington. Lee, Christopher, and Kelley, Lauren. “Who Bears Witness to a Hidden Epidemic?” The New York Times, The New York Times, 14 July 2020. Taub, Amanda. “A New Covid-19 Crisis: Domestic Abuse Rises Worldwide.” The New York Times, The New York Times, 6 Apr. 2020.

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PANDEMIC TRIALS AND TRIBULATIONS: PROTECTING ABORTION RIGHTS IN TEXAS BY PAIGE WHITE Medical abortion, which occurs when someone terminates their pregnancy through prescription drugs, has grown in popularity since its debut in the U.S. in 2000. The privacy, convenience, and safety this treatment offers patients (compared to traditionally invasive surgical procedures) explains why roughly 40% of all abortions in the U.S. are medical abortions (Joffe 1). Although this option has been available for twenty years, the U.S. has recently seen a surge in prescription requests during the COVID-19 pandemic. Between stay at home orders, lockdowns, and limited access to medical care during the crisis, many worry that people seeking abortions will be unable to access treatment while they are still eligible for it. This harsh reality has forced states to defend their most stringent abortion policies, particularly those pertaining to medical abortion: the more accessible and safe option for patients seeking abortions during the ongoing pandemic. Medical abortion occurs when someone takes two pills, mifepristone and misoprostol, to terminate their pregnancy. Mifepristone blocks the progesterone hormone and breaks down the uterine wall. Misoprostol, an anti-ulcer treatment, causes contractions that induce miscarriage (Adams 1). Although approved by the U.S. Food and Drug Administration, misoprostol is heavily restricted. Patients can only be prescribed the medication up until ten weeks into their pregnancy. Additionally, the F.D.A placed mifepristone in the Risk Evaluation Mitigation Strategies program, subjecting those who seek a prescription to numerous rules and regulations. While drugs classified under the Risk Evaluation Mitigation Strategies program are typically known to have severe side effects, mifepristone is scientifically proven to be safe when taken to terminate pregnancy. Unfortunately, this classification makes it much more difficult for patients to obtain a prescription. For example, mifepristone cannot be dispensed in a pharmacy. It can only be obtained through a doctor certified to prescribe the drug, an F.D.A. patient agreement, or a clinic or hospital (Adams 1). Once a patient finds a clinic where they can be prescribed the medication, they must also find a medical professional who is willing to register with the drug’s distributor. This detail, although small, has made obtaining the medication harder. Some doctors are aprehensive about registering with the drug’s distributor because it will publicly link them to abortion. If that wasn’t enough, doctors who offer medical abortions must also abide by the same government restrictions which apply to surgical abortions, such as rules of parental consent, waiting periods, and ultrasounds (Joffe 1). Eight U.S. states require every patient seeking an abortion to receive state-mandated materials claiming abortion causes “lasting emotional and mental health harm,” despite the fact that there is no evidence this is true (Rocca et al. 1). These rules and regulations are clearly only in place to make seeking an abortion more difficult. Texas continues to be one of the strictest states when it comes to abortion. On March 22, 2020, Texas Governor Greg Abbott issued Executive Order GA-09, postponing all medically unnecessary surgeries and procedures until April 21, 2020. Abbott cited the need to preserve hospital space and personal protective equipment to fight COVID-19. Because Texas is one of

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seventeen states which require a physician to be physically present when dispensing medications necessary for medical abortion, Abbott’s Executive Order prohibited thousands of women from exercising their constitutional right to govern their own bodies (Donovan 1). Following Abbott’s order, the state saw a 94% increase in “requests for medical abortion by mail” (Truong 1). Instead of recognizing the incredibly high demand for this medical care, Governor Abbott and Texas Attorney General Ken Paxton continued to defend and justify the order. Luckily, Executive Order GA-09 explicitly states that any procedure that would not deplete hospital capacity or personal protective equipment may be performed. This detail encouraged pro-choice advocates, who argued that medical abortions should continue since the consultations typically do not occur in a hospital and little personal protective equipment is required. Frustrated that executive branch state officials were using a pandemic to advance their efforts to restrict abortion access, pro-choice organizations filed a law suit. The case bounced between circuit and lower courts until U.S. District Judge Lee Yeakel blocked the order, claiming it prohibited women from exercising their “fundamental constitutional right[s]” which had already been decided by the United States Supreme Court in Roe v Wade (Najmabadi 1). Judge Yeakel also extended the legal limit for an abortion to 22 weeks after the patient’s last menstrual cycle — by April 22, the expiration date of Executive Order GA-09. Although temporary, this ruling was a huge win for Texas women and pro-choice advocates. Texas is just one example of a state where politicians are using the COVID-19 pandemic to advance their political agendas and further restrict abortion acess. Unfortunately, attempts at policing people’s bodies and reproductive systems are happening all over the country. However, it’s comforting to know that the precedent set by Roe v. Wade in 1973 still holds true. It’s an individual’s constitutional right to have autonomy over their own reproductive system and we must never forget that truth.

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References Adams, Patrick. “Opinion | Amid Covid-19, a Call for M.D.s to Mail the Abortion Pill.” The New York Times, 12 May 2020. Donovan, Megan. “Improving Access to Abortion via Telehealth.” Guttmacher Institute, 7 May 2019. Joffe, Carole. “A Rare Expansion in Abortion Access Because of COVID-19.” Time, 28 Sept. 2020. Najmabadi, Shannon. “Federal Appeals Court Allows Medication Abortions in Texas during Coronavirus Pandemic.” The Texas Tribune, 14 Apr. 2020. Rocca, Corinne H., et al. “Emotions and Decision Rightness over Five Years Following an Abortion: An Examination of Decision Difficulty and Abortion Stigma.” Social Science & Medicine, vol. 248, Mar. 2020, p. 112704. The State of Texas, Executive Office of the Governor [Greg Abbott]. Executive order GA-09: Relating to hospital capacity during the COVID-19 disaster. 22 Mar. 2020. Office of the Secretary of State, 22 Nov. 2020, pp. 1-3. Truong, Kimberly. “The Demand for At-Home Abortion Is Increasing Amid the Coronavirus Pandemic.” InStyle, 23 July 2020.

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PANDEMIC HISTORY LESSONS: WHAT THE PAST CAN TEACH US ABOUT COVID-19 BY SHARLEEN GARCIA Introduction Lessons from past pandemics and epidemics can direct professionals across sectors to know where attention is needed to improve public health in the present and future. Although each infectious disease and outbreak is different in its nature, studying past pandemics and epidemics can teach us how social institutions deliver and influence knowledge or technology transfer through socially constructed pathways (Dingwall 2013). These histories can help improve surveillance, communication effectiveness, policies to reduce disease transmission, and other health outcomes that may arise from a public health crisis. As the world continues to navigate the current COVID-19 pandemic, it is critical that those at the forefront of the public health response (including those in media, government, and law) learn from the past in order to better assess today’s public health responses and apply lessons from history to prevent similar occurrences in the future. The Role of the Media During a Public Health Crisis In the past, the media as a social institution has delivered knowledge contributing to the social distress, politicization, or stigma around an infectious disease. In some instances, the media has failed to address the emergence of these issues during an outbreak, creating more confusion, fear, denial, or hostility in society. The investigation of the 1976 outbreak of Legionnaires’ disease, for example, which primarily infected people who went to a convention of the American Legion in Philadelphia (CDC), was complicated by the publicity of the event and confusing methods of communication that created uncertainty, fear, and circulation of rumors among the public (Thacker). In this case, social distress proceeded from unclear and inconsistent media communication. In addition, when opinions that had no basis in science or medicine were not addressed right away, more confusion, speculation, and panic arose. Similar events have occurred during the COVID-19 pandemic, including the “buyers club” leaving supermarkets with shortages and conspiracy theories such as the 5G conspiracy which wrongly suggested that phone signals either transmit the virus or reduce our defenses to it (UCSF Dept. of Psychiatry and Behavioral Sciences). Going forward, it will be important to remain on the lookout for opinions or rumors about infectious diseases which have no basis in science and address them right away, especially as the origin and cause of COVID-19 is known. Failing to communicate with transparency, consistency, and sensitivity will generate distress, especially among those who are already prone to anxiety about health. Such a failure will have ramifications for public health decision-makers, health authorities, and health care providers. At the same time, when an infectious disease like Legionnaires’ disease or SARS-CoV-2 becomes heavily politicalized in a presidential election year, the media’s role can be complicated

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(Thacker). Both the Legionnaires’ disease epidemic of 1976 and the COVID-19 pandemic occurred concurrently with a presidential election year. In both cases, the media became a mediator for both public health experts and politicians, resulting in confusion, distrust in governing bodies, and denial of public health guidelines. In addition, the media can play into political strategies or technologies that attempt to monopolize the situation or dangerously downplay pandemics to ensure reelection. Thus the media can influence the distribution of power by determining when and which knowledge is shared with the public (Entman 2007). As the exercise of power intensifies, the media becomes a greater source of knowledge during a presidential election year and different political strategies and technologies come into play. In these situations, the media must be more considerate of the ways in which the political climate can confuse the public and prompt fear, anger, distrust, or denial of public health guidelines. The media as a social institution must also learn from the past since it has played an important role in both the perpetuation and reduction of stigma during public health crises. During the 1980s AIDS epidemic, men who have sex with men (MSM) were disproportionately affected. As a result, the infectious disease HIV became known as “the gay plague” and was associated with risk behaviors like drug use and promiscuity, unless the victims were “innocent mothers or babies” (UCSF Dept. of Psychiatry and Behavioral Sciences). In the beginning, the mainstream media paid relatively little attention to the AIDS epidemic and did not address the fear that contributed to the stigma around HIV. The subsequent rise in hostility and shame had adverse effects on the mental health of those infected, preventing people from getting tested and increasing the likelihood of disease transmission (Jaffee; UCSF Dept. of Psychiatry and Behavioral Sciences). However, the multidisciplinary response to the AIDS epidemic (including the increase in grassroots activism by national and transnational alliances, non-governmental and governmental organizations, advocacy groups, elites, and private foundations) resulted in research advancement and increased media advocacy (Messac and Prabhu; Gillet 2003). With the development of AIDS research and coalition building, the media could more easily present clear data on community prevalence and disease transmission, improve prevention, and dismantle fear. During the current COVID-19 pandemic, the media could learn from the AIDS crisis, especially considering today’s increase in xenophobia and discrimination against people of Chinese descent (and people of color in general) who might not be able to socially distance due to living situation or occupation (UCSF Dept. of Psychiatry and Behavioral Sciences). By presenting more data revealing the root causes of health inequities, the media can prevent the suffering of those most at risk of being shamed or condemned for their SARS-CoV-2 infection. In addition, by fostering cross-sector international collaboration, the media industry can improve mass communication during a pandemic and eliminate fear and hostility. Evaluating Public Health Surveillance Systems Case studies from the past also help assess and progress the development of surveillance systems and public health governance today. For example, the case of Typhoid Mary, an asymptomatic carrier of Typhoid who was believed to be responsible for 53 cases of typhoid fever

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between 1900 and 1915, taught public health officials and epidemiologists about the importance of tracking of asymptomatic and symptomatic carriers (Merrill). The lessons learned from Typhoid Mary’s case are as relevant today as they were in 1915, with epidemiologists and governing bodies in 2020 placing greater importance on surveillance technology, contact tracing, and the testing of symptomatic and asymptomatic carriers. However, the case of Typhoid Mary also highlights the need to apply social network topology to control the spread of infectious diseases or other health outcomes that might arise from a public health crisis. Social network topology (which is based on social network theory) rests on the testable assumption that the social structure of an individual’s network itself is largely responsible for determining behavior and attitudes that might influence health status or the spread of disease (Berkman and Krishna; Christakis). Despite its value, social network topology has not been applied to the extent that it is needed during public health crises (Ferguson 2020). There have been no extensive applications of social network topology for the surveillance and prevention of the longterm negative mental health outcomes which emerge from a public health crisis. One such outcome is an increase in suicides, which have reached historic highs in past pandemics and epidemics (Liu et al. 2012; Mamelund 2008). Therefore, the application of social network topology may prove to be useful during the COVID-19 crisis and future pandemics, not only to prevent the spread of infectious disease but also to prevent negative mental health outcomes such as depression and suicide. To prevent an endless variety of new virus strains from causing new pandemics, public health professionals should consider the geographic origins of past outbreaks and previous points of disease transmission to plan for and prevent future public health crises. Since most pandemics are believed to have originated in Asia (typically in the eastern boundaries of European Russia or southern China, with the most recent highly infectious disease strains believed to have originated in China), scientists and epidemiologists should focus their surveillance and prevention efforts there. In addition, since history suggests that future pandemics will originate in this area before following major routes of commerce and communication, epidemiologists should consider planning any future prevention efforts in accordance with this information (Mamelund 2008). To minimize the possibility of cross-infection between species, governments should also increase surveillance on animal species that have been identified as a possible origin of a viral strain or vector for transmission to humans. Specifically, increasing systematic data collection and observation of wet markets in Western China will be critical. Animal reservoirs of plague and influenza have long been known to exist in these sites and animal-to-human disease transmission has occurred in these markets the past (Hardy 2020). Further investigation into different strains and genetic interplay among species will also be necessary to prevent the onset of new pandemics in the future (Tsoucalas et al. 2016). Given the viral nature of SARS-CoV-2, the emergence of strains via different pathways would not be unusual. After all, viruses are capable of boundless genetic variability by continuous, gradual mutation and by reassortment of gene segments between viruses (Reid and Taubenberger 2003). One of the greatest examples of a virus’ genetic variability and the emergence of strains is the H1N1 virus which onset the deadly 1918 Spanish Influenza

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Pandemic, infecting nearly 1.8 billion people and killing an estimated 50–100 million in less than a year (Mamelund 2008). Since 1918, the novel influenza virus strains emerging from the H1N1 virus have killed more than 30,000 per year in the U.S. alone (Reid and Taubenberger 2003). Therefore, investing in research that seeks to understand the sequencing of the virus genome and the genetic interplay among different species may be helpful to direct surveillance in the future and prevent the spread of SARS-CoV-2 or any novel strains that might emerge. Finally, animal populations in the past have had surveillance systems that work quite independently from those directed at humans. Thus reconstituting and hybridizing both systems will improve the management and administration of public health systems, provide earlier warnings to prevent future pandemics, and prevent overburden (Dingwall 2013). Some may argue that this is not beneficial in the middle of a pandemic that has overburdened the U.S. public health and healthcare systems. Reconstructing these surveillance systems may be useful for ongoing vaccine treatment research, however, since past vaccine development has proven to be difficult and often not a comprehensive solution due to the genetic variability of viruses. Legal and Public Policy Intervention Executing various comparative studies will also be important for legal and policy public intervention. For instance, to ensure the effectiveness of mandatory mask-wearing policies, more comparative studies of manufactured masks and homemade masks should be conducted. It is not enough to rely on the most recent comparative study from 1975. Additionally, more comparative studies should be conducted on the different attitudes and beliefs that can influence mask-wearing (such as masculine toughness, political orientation, and fatalism) in order to improve policy interventions, particularly in community-wide institutions and services. (Palmer and Peterson 2020; Cheng 2020; Jimenez et al. 2020). Changing policies and laws that will reduce social and economic inequality, affect structural change, and act as preventative measures are also important. In the past, social determinants of disease such as structural racism, poverty, and unequal access to healthcare all increased the risk of infectious disease contraction, including influenza, smallpox, and cholera (Mamelund 2006; Merrill). Unlike cholera, however, SARS-CoV-2 cannot be controlled by environmental measures. More time and energy should be spent reducing social and economic inequalities at the policy level. Otherwise, social determinants of disease will continue to have downstream effects on morbidity, quality of life, mortality, and healthcare costs (Unnatural Causes 2008). Especially in the U.S., where the healthcare system is not inclusive of everyone living in the country, people of low socioeconomic status and people of color will be disproportionately affected. With higher rates of pre-existing conditions such as obesity, people of low socioeconomic status and people of color in the U.S. have an increased risk of morbidity and mortality associated with several diseases including SARS-CoV-2 (Ogden 2006; Dietz and Santos-Burgoa 2020). To regulate and support disease prevention as well as reduce social disparities in health, it will be necessary to implement policies such as early detection, control, and management.

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Conclusion There are many lessons to be learned from past pandemics, not only for public health professionals but also for professionals in media, government, law, and public policy. Responding to a public health crisis requires evidence-informed decision making. Therefore, an analysis of past public health responses to pandemics and epidemics is key for leaders seeking to understand the present and become better decision-makers. To improve communication, surveillance systems, and public health policy, we must continue to investigate past case studies and the role of different social institutions in delivering and influencing knowledge or technology transfer.

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References Berkman, L.F. and Krishna, A. “Social Network Epidemiology.” Social Epidemiology, ed. Lisa Berkman, Oxford University Press, 2014. Cheng J. “The Psychology and Political Orientation of Social Distancing Compliance and Attitude toward Mask-Wearing during the COVID-19 Outbreak.” PsyArXiv, 14. Aug. 2020. Web. Christakis, Nicholas. “How social networks predict epidemics.” Youtube, uploaded by TED, 16 Sep. 2010. Dietz W. and Santos-Burgoa, C. “Obesity and its Implications for COVID-19 Mortality.” Obesity. 2020; 28(6):1005. Dingwall et al., “Why a Sociology of Pandemics?” Sociology of Health & Illness. 2013; 35 (2):167-173. Entman R.M. “Framing Bias: Media in the Distribution of Power.” Journal of Communication. 2007; 57(1):163–173. Gillett J. “Media activism and Internet use by people with HIV/AIDS.” Sociology of Health and Illness. 2003 Sep; 25(6):608-24. Hardy A. “Silent Spaces: COVID-19 and the Lessons of History.” Times Literary Supplement. June 30, 2020. Jaffee, H.W. “Early Days of AIDS in the United States: A Personal Perspective.” Cases in Field Epidemiology: A Global Perspective, ed. Mark Dworkin, Jones and Bartlett Learning, 2010. Jimenez, T. et al. “Fatalism in the Context of COVID-19: Perceiving Coronavirus as a Death Sentence Predicts Reluctance to Perform Recommended Preventive Behaviors.” Population Health, June 2020. Liu X et al. “Depression after exposure to stressful events: lessons learned from the severe acute respiratory syndrome epidemic.” Comprehensive Psychiatry. 2012; 53(1):15–23. Ogden, C.L et al. “Prevalence of overweight and obesity in the United States, 1999– 2004.” JAMA. 2006; 295(13):1549–1555. Mamelund, S.E. “A socially neutral disease? Individual social class, household wealth and mortality from Spanish influenza in two socially contrasting parishes in Kristiania 1918–19.” Social Science and Medicine. 2006; 62:923–940.

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Merrill, R.M. “Historic Developments in Epidemiology.” Introduction to Epidemiology. ed. Lucianne Bailey, Open University Press, 2005. Messac, L. and Prabhu, K. “Redefining the Possible: The Global AIDS Response” Reimagining Global Health, ed. Paul Farmer, University of California Press, 2005. Palmer C. and Peterson R. “Toxic Mask-ulinity: The link between masculine toughness and affective reactions to mask wearing in the COVID-19 era.” Politics & Gender. 2020; 1-14. Reid, A.H. and Taubenberger, J.K. “The Origin of the 1918 Pandemic Influenza Virus: A Continuing Enigma.” Journal of General Virology. 2003; 84:2285-2292. Thacker, S.B. “Legionnaires’ Disease: Investigation of an Outbreak of a New Disease,” Cases in Field Epidemiology: A Global Perspective, ed. Mark Dworkin, Jones and Bartlett Learning, 2010. Tsoucalas G., Kousoulis. A, and Sgantzos M. “The 1918 Spanish Flu Pandemic, the Origins of the H1N1 virus Strain, a Glance in History.” European Journal of Clinical and Biomedical Sciences. 2016; 2(4):23-28. Christakis, Nicholas. “How social networks predict epidemics.” Youtube, uploaded by TED, 16 Sep. 2010. UCSF Dept. of Psychiatry and Behavioral Sciences. “Learning from AIDS.” Youtube, uploaded by UCSF Dept. of Psychiatry and Behavioral Sciences, 2 Jun. 2020. Unnatural Causes: Is Inequality Making Us Sick? Vital Pictures, Inc., 2008. PBS.

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SOLITARY CONFINEMENT REFORM IN CALIFORNIA: A CASE FOR THE EXECUTIVE APPROACH BY MAREN FRY E Introduction Advocates have been trying for decades to reform California’s solitary confinement practices, with limited success. In 2012, almost 10,000 prisoners were kept in full isolation conditions within state prisons; some had been in solitary confinement for decades with little opportunity for review. Recent years have seen a stronger push to limit the use of solitary confinement, leading to a drop in solitary confinement populations around the state of California (Center for Constitutional Rights 2016). However, despite reform attempts, solitary confinement remains a grave issue in California prisons and jails for both adults and juveniles. This paper analyzes previous attempts at reform in California as well as successful changes to solitary confinement policies in other states. It argues that although litigation and legislative advocacy have been helpful in improving solitary confinement conditions and practices, the most effective way to create widespread, institutionalized change is through executive action directly from the governor or the California Department of Corrections and Rehabilitation (CDCR). While the direct action approach presents its own challenges since it may be difficult to achieve politically, it offers the most comprehensive opportunity for reform.

Background California’s excessive use of solitary confinement primarily stems from two key factors: prison gangs and facility overcrowding. Since the 1980s, when rehabilitative programs dwindled in an era of mass incarceration, gangs have had a tight grip on prison politics with an estimated 70% of inmates associated to some degree with a prison gang as of 2006 (Sullivan 2006). The state’s strategy to combat the power of gangs is to confine those associated with the gangs to isolated cells, in an effort to curb their influence and encourage affiliates to ‘debrief,’ or relate all their knowledge about their gang to prison officials (Sullivan 2006). After decades of placing gang members in solitary confinement, California has an entrenched pattern of putting non-dangerous inmates in solitary confinement for decades with little review simply because of gang affiliation (Lobel 2020). In fact, the vast majority of long-term solitary confinement prisoners (people who have been in solitary confinement for 10 or more years) are there due to gang affiliation and not prison rule violation or violence (Reiter 2016). These prisoners often do not see grass, sky, or dirt. Nor do they touch any human being besides prison officers for decades, sometimes for such arbitrary reasons as having tattoo art that resembles gang symbols (Lobel 2020). Facility overcrowding has also exacerbated solitary confinement practices, especially in county jails. Since 2011, when Governor Brown passed a reform bill to reduce state prison populations, county jails have become increasingly crowded as prisons transfer inmates to local facilities. Unfortunately, with increased populations comes increased violence and gang problems

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in jails that are ill-equipped to handle the influx of prisoners. In an effort to respond to escalating murder and gang violence in their facilities, officials keep jail inmates in solitary confinement for months and even years (Pohl and Gabrielson 2020). Using solitary confinement as the standard tactic to control prison violence is extremely harmful to inmates. There is well-established research on the severe mental, physical, and emotional consequences of isolation. In a study conducted at the notorious California supermax prison Pelican Bay, 7 out of 10 Security Housing Unit (SHU) prisoners interviewed reported that they were on the verge of a mental breakdown and over half of prisoners reported chronic depression and violent fantasies (Haney 2015). Compared to prisoners in general population housing, inmates kept in solitary confinement have more pain, social withdrawal, trauma, stress, and hypertension (Haney 2015; Hawkley 2015). There is widespread international condemnation of solitary confinement practices; UN human rights expert Nils Melzer described prolonged solitary confinement in the U.S. as “psychological torture” (UN Human Rights 2020). California’s policy of keeping prisoners in solitary confinement for decades simply because of gang affiliation is an especially inhumane practice as it arbitrarily inflicts severe damage on prisoners who have not committed violent offenses. The fact that California continues to rely on such a devastating practice to address issues within prisons and jails has spurred advocates to demand reform. It has been very difficult, however, to induce corrections officers to move away from such an ingrained policy. Litigation Reform California solitary confinement practices have been challenged numerous times in court with largely minimal results. In the 1970s, various lawsuits against the state succeeded in advancing due process rights requiring that prisoners be notified before a transfer to solitary confinement and have a hearing with representation. In the 1980s, lawsuits gave prisoners the right to three showers and eight to ten hours of exercise a week, clean cells, and adequate lighting (Hinds and Butler 2015). Still, the courts upheld solitary confinement as a constitutional practice. The most comprehensive early attempt to confront the practice was through the 1990 case Madrid v. Gomez, a class action lawsuit filed by Pelican Bay inmates just a few years after the prison opened. In this lawsuit, the judge ruled that keeping mentally ill prisoners in long-term solitary confinement was a violation of the Eighth Amendment but for other prisoners the physical and mental damages of isolation were not severe enough to exceed the standards of cruel and unusual punishment (Lobel 2020). Thus, indefinite solitary confinement was upheld and the many lawsuits filed during these years only succeeded in providing basic human rights to inmates. In 2011, hunger strikes throughout California prisons brought international attention to the conditions of solitary confinement in the state. The leaders of the hunger strike, confined to the Pelican Bay SHU, filed a pro se lawsuit against the state and demanded reform. At the time of the lawsuit, the conditions in the SHU were deplorable. Of the more than 1,000 prisoners kept in the SHU in conditions of solitary confinement, over 500 had been in SHU for over a decade and 78 had been there for more than two decades. They were kept in eight feet by ten feet cells for 22 or

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23 hours a day, allowed limited or no phone calls, and separated from visitors by glass panes. Their recreation yard was a concrete box with no equipment, minimal sunlight, and a grate overhead. They had no access to rehabilitation, work, or employment programs. The prisoners faced review only once every six years and the review rarely led to release from isolation. According to prisoners, the only way to get out of SHU was to “snitch, parole, or die”; that is, give information to prison officials about your gang and face retribution once returned to the general population, be released directly from SHU to parole after serving a full prison sentence, or die inside SHU (Lobel 2020). In 2012, justice organizations from around the state joined the cause and filed the class action lawsuit Ashker v. Brown, contending that long-term solitary confinement on the basis of gang affiliation violated the Eighth and Fourteenth Amendments. They brought in experts to back their case. For his expert report, UK correctional authority Andrew Coyle reviewed Pelican Bay SHU and found that its conditions “fail[ed] to meet basic standards of humanity.” UN official Juan Mendez went further and called Pelican Bay SHU confinement “torture” based on his review of the facility (Lobel 369). Faced with such a strong case, the state finally settled in 2015. Under the settlement agreement, state-wide solitary sentencing changed from status-based (gang identity) to behaviorbased (rule violation within prison) and all solitary confinement sentences were to be determinate. At Pelican Bay, the Restricted Custody General Population Unit (RCGP) was created as an alternative to complete isolation. It was intended for prisoners whose rule violations did not warrant full isolation or who would be in danger if released from SHU directly back to the general population. In the RCGP, inmates could have contact visits, receive education, and interact with other inmates in their unit (Center for Constitutional Rights 2015). At first, the settlement appeared to be producing significant changes. The state reviewed all inmates kept in indefinite isolation as well as all gang-affiliated inmates kept in any isolation. Within the first year of implementation, 99.6% of long-term solitary confinement inmates at Pelican Bay were transferred out of SHU isolation and more than 1,500 prisoners statewide were released from their solitary confinement housing units (Center for Constitutional Rights 2016). At the time, it seemed like litigation could be a successful avenue for reform. However, the CDCR remained in charge of all state prisons and started finding ways to keep inmates in solitary confinement. Instead of transferring SHU inmates to standard general populations, prison officials moved prisoners to extremely restrictive general population housing that kept them in the same isolating conditions inmates faced in SHU (Center for Constitutional Rights 2017). These RCGP units, intended to be more rehabilitative and less isolating, became another form of solitary confinement with very limited access to job training and social interaction (Center for Constitutional Rights 2019). Although prisoners were allowed contact visits as RCGP inmates, the only RCGP unit in the state was located at Pelican Bay Prison. The prison is a six hour drive from San Francisco and twelve hours from Los Angeles. In addition, contact visits were only allowed on weekdays, making it very difficult for family and friends to visit. The prisons also violated due process by using unreliable information to accuse inmates of violence and send them back to SHU. Based on these practices, a judge found in 2019 that the CDCR was not complying

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with the terms of the 2015 settlement and extended the case oversight period by one year (Ashker v. Newsom 2019). Clearly, the landmark settlement in Ashker v. Brown has not achieved its objective. Although official statistics showed vast improvement, in reality the CDCR continued to use solitary confinement as its primary control tactic, use unreliable information to put prisoners back in SHU, and force inmates who had been transferred to the general population to live in just as much isolation as in the SHU. Without the CDCR's compliance with the reforms specified in the 2015 settlement, the system reverted back to its deep-rooted reliance on solitary confinement. Thus, the lawsuit has done little to improve the daily lives of prisoners in solitary confinement despite years of litigation and a successful settlement. Today, eight years after Ashker v. Brown was filed, litigation for the case (now Ashker v. Newsom) continues. Whether the case will ever successfully engender long-term institutionalized change remains to be seen. It is clear, however, that 50 years of litigation have been unsuccessful in meaningfully improving California’s statewide practice of solitary confinement. Since the main resistance to change has come from the CDCR, advocates have begun turning to county jails, which are not under CDCR jurisdiction, as sites of reform. The past few years have seen a new push to sue county jails for unconstitutional solitary confinement practices. So far, three lawsuits have been settled. In Chavez v. County of Santa Clara, the Prison Law Office filed a class action lawsuit on behalf of hundreds of incarcerated people kept in small concrete cells for 22-24 hours a day for months or even years. Some of these individuals were potentially innocent people who had not even been tried and were awaiting court dates. Recreation time was limited to just three hours a week and placement in these solitary confinement cells was based on an unreliable classification system (Chavez v. County of Santa Clara 2015). The settlement agreement for the case required county jails to create a system of “administrative management” in which isolated individuals would spend more time outside their cells, have opportunities to show good behavior, and potentially return to the general population. The classification system for administrative management placement would require specific criteria and incorporate a high level of review (Prison Law Office 2019). Two other counties, Contra Costa and Sacramento, had similar settlement agreements with increased due process requirements and improved conditions in confinement (Associated Press 2019; Mays v. County of Sacramento 2019). Initial statistics seem promising. The Santa Clara County solitary confinement population dropped from 400 inmates to 26 throughout 2019, while Contra Costa County dropped from 100 to 3 and the Sacramento County population decreased by half (“In California prisons” 2019). The case of Ashker v. Brown, however, cautions against placing too much value on these one-year-post-settlement statistics. Since comprehensive reports on county compliance with the settlements are not available to the public, it is unclear whether these litigation attempts will prove more successful than the statewide efforts. It is possible that county jails will either find ways to comply with the settlements while still retaining harsh isolation conditions or revert to old practices without comprehensive oversight. An additional concern stems from the highly diverse communities which county jails serve. Some jails are located in high-crime, high-poverty areas

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and likely have little money to invest in new solutions while others like the Santa Clara County jail have already benefited from substantial government funding (Vansickle 2019). Liberal counties may be more willing to embrace reform than conservative ones, while the scope of reform could be dependent on one sheriff’s open mindedness and tolerance for change. Overall, challenging statewide solitary confinement in the courts through litigation seems to have limited results. While it is still too early to analyze the recent county reform, local efforts may have limited results as well. Lawsuits have succeeded in providing basic human rights to inmates, but there has been no substantial solitary confinement reform to create meaningful change for the thousands of California inmates kept in isolation. Legislative Action Although California advocates’ primary method of challenging solitary confinement has been through the courts, they have also pushed for lawmakers to introduce legislation on this issue. Unfortunately, they have only had success with legislation that addresses the most shocking instances of confinement: isolation for pregnant women and juveniles. Currently, a bill prohibiting solitary confinement for pregnant inmates, AB 732, has passed the Assembly and is now in the Senate awaiting a vote. As for juvenile confinement, legislation that severely limits isolation for juvenile offenders in prisons and jails, SB 1143, was passed in 2016. SB 1143 is the only bill addressing solitary confinement that has passed into law in the 21st century in California. It allows isolation only when a juvenile poses an immediate threat of harm and all other options have been tried and prohibits juvenile solitary confinement for punishment purposes. Despite the clear imperative to protect juveniles, it took five different attempts before the bill was finally passed due to opposition from the Chief Probation Officers of California and the California Correctional Peace Officers Association (Burrell 2019). Legislative success addressing isolation in the state is extremely difficult to attain but can lead to important changes. Forced to comply with SB 1143, a Sacramento County youth detention facility has taken the lead in demonstrating more rehabilitative approaches than solitary confinement. Officials recorded a decrease in the number of solitary confinement hours at the facility and built ‘the Cove,’ a brightly lit multi-sensory de-escalation room where inmates are sent instead of solitary confinement (Burrell 2019). In the Cove, youth can talk to staff, build communication skills, or play games (McCluskey 2018). The positive effects of SB 1143 were seen throughout the state as well. After the legislation was passed, the Division of Juvenile Justice (DJJ) started collecting data on juvenile solitary confinement (which the DJJ calls “room confinement”), with encouraging results. In the first five months of 2018, juvenile detention facilities confined an average of 14 inmates for an average of 5 hours per confinement incident, far less than the 22 hours per day, multi-day isolation documented in previous years (Washburn and Menart 2019; Burrell 2019). However, these statistics track only official room confinement. Facilities often have behavioral treatment programs (BTPs) where violent and aggressive juveniles are kept in isolation for extended periods of time, but these programs are not considered room confinement. Youth can be confined in BTPs for months with only seven hours of out-of-cell time per day and limited

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interaction or activities (Washburn and Menart 2019). Thus BTPs represent an unregulated loophole in SB 1143 that allows solitary confinement to continue for juveniles. Overall, SB 1143 appears to have been effective in limiting official solitary confinement but was not sufficiently comprehensive to restrict all forms of isolation. This suggests that legislation has the potential to be more successful than litigation if it is inclusive of all solitary confinement practices. However, the great difficulty lawmakers experienced passing SB 1143, especially the opposition they faced from the Chief Probation Officers of California and the California Correctional Peace Officers Association, indicates it may be difficult to pursue meaningful legislation in the future. Executive Approach The final approach to reforming solitary confinement in California is direct changes to the system through executive action. While this has not yet occurred on any meaningful scale in California, the approach has successfully worked elsewhere in the nation. Colorado was spurred to action in 2013 after a prisoner released directly from solitary confinement to parole murdered the state corrections chief. The governor appointed a new chief corrections officer with three goals: to eliminate solitary confinement for the mentally ill, to address the needs of inmates in long-term solitary confinement, and to mitigate the release of inmates directly from solitary confinement to parole. The new state corrections chief, Rick Raemisch, decided to spend 20 hours in a solitary confinement cell. The experience moved him and when he emerged he implemented the proposed reform. The state saw immediate improvements. The number of people in isolation decreased by over 80% in just a few years, from 1,505 in September 2011 to 185 in May 2018. The number of inmates released straight from solitary confinement to the public decreased by more than 90% (Hall 2016). Granted, as with Ashker v. Brown, these statistics may hide loopholes allowing Colorado to keep prisoners in near-complete isolation while still technically transferring prisoners out of solitary confinement. It is heartening, however, that Colorado has continued its reforms. Raemisch continues to be an outspoken critic of solitary confinement and in 2017, full isolation was limited to 15 days for punitive cases 2017). In Maine, executive reform was equally impressive. In 2010, a group of experts released a comprehensive and scathing report of Maine’s Special Management Units (similar to California’s SHUs) and their use of solitary confinement. As a result, the Commissioner of Corrections, Joseph Ponte, decided to implement many of the reforms recommended in the report. Ponte created much stricter admissions criteria for the Special Management Units (SMUs) and expanded recreation and rehabilitation within the units. Inmates now have access to reading materials, radios, television, group recreation, and counseling. Additionally, the inmates have ‘roadmaps’ for getting out of the SMU and can gain privileges through good behavior. 18 months after the reforms were implemented, SMU populations were down by half. Fathi further details Maine’s improvements: correction officers are now trained in de-escalation techniques and solitary confinement includes group recreation and counseling (2015). Although there is still much work to be done, overall it appears that reforms in both Colorado and Maine have been effective. When state corrections

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departments actively and creatively implement changes instead of opposing them, as has been the case in California, change can be quick and long lasting. Is this type of change possible in California? The California Department of Corrections and Rehabilitation has certainly not been cooperative in implementing the settlement agreement from Ashker v. Brown and has continued to appeal new orders. The organization’s continued push to uphold the status quo indicates a resistance to widespread change. Although few prominent staff members have made public statements about solitary confinement, Connie Gipson, the current director of the Division of Adult Institutions, has publicly supported isolation. Gipson was the warden of the Corcoran state prison during the solitary confinement hunger strikes of the early 2010s. Gipson justified solitary confinement: “just like if you have a barrel of apples and you have one apple going spoiled. You gotta remove it out or everybody spoils" (Palta 2013). Gipson, like current secretary Ralph Diaz and many other top officials in the CDCR, was appointed by Governor Newsom. This means that the governor has the power to completely change the CDCR’s leadership and appoint progressive, optimistic champions of reform. Although Newsom failed to do so in his first round of appointments after taking office, he has since taken action to support prison reform by signing multiple beneficial bills (Office of Governor Newsom 2019). Since Newsom does seem open to criminal justice reform, voters should start by lobbying the governor to bring change to the CDCR. In the next election, California voters should make solitary confinement and new CDCR leadership a key issue. Communities can also focus their efforts on appointing progressive county leadership to enact meaningful changes in jails. If this succeeds in precipitating executive action, I believe California could finally see the long-awaited overhaul of its solitary confinement system. Conclusion This paper has examined attempts at reforming solitary confinement in California prisons, jails, and juvenile facilities, including litigation, legislation, and the potential for executive action. Analyzing the efficacy of these attempts has revealed the difficulties in enacting meaningful change in the state. Litigation often secures specific rights without actually leading to significant changes in solitary confinement practices. In Ashker v. Brown, pushback from the CDCR has caused the lawsuit to drag on for almost a decade with little material change for prisoners living in isolation. Legislation has been more successful. But with only one piece of major legislation on solitary confinement reform in twenty years, it seems unlikely that a focus on bills will engender the change needed with any rapidity. Executive action from within the CDCR and county-specific leadership seems the most promising strategy to create sweeping reform. With California’s current CDCR leadership this is next to impossible. But if advocates can mobilize Governor Newsom or future governors to overhaul CDCR leadership and bring in reformists like Rick Raemisch and Joseph Ponte, there is a possibility for real and long-lasting change.

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References Associated Press. “California jails use kinder approach to solitary confinement.” Los Angeles Times, 26 Dec. 2019. Burrell, S., & Song, J.S. “Ending solitary confinement of youth in California.” Children’s Legal Rights Journal, 39(1), 42-87. The Center for Constitutional Rights. “Summary of Ashker v. Governor of California settlement.” 1 Sep. 2015. Web. The Center for Constitutional Rights. “California solitary confinement statistics: Year one after landmark settlement.” 18 Oct. 2016. Web. The Center for Constitutional Rights. “Two years after historic settlement ending indefinite solitary confinement in CA, CCR details ongoing violations, releases report showing lasting consequences of SHU post-release.” 20 Nov. 2017. Web. The Center for Constitutional Rights. “Worst features of solitary confinement persist in California prisons, attorneys argue.” 3 Jun. 2019. Web. Chavez v. County of Santa Clara (2015). Class action complaint for injunctive and declaratory relief. Case 1:15-cv-05277-NJV. Fathi, D.C. “United States: Turning the corner on solitary confinement?” Canadian Journal of Human Rights, 4(1), 167-177. Hall, D.J. “How Colorado reduced solitary confinement.” Urban Milwaukee. 18 Jun. 2016. Web. Hawkely, L.C. (2015). Expert Report of Louise C. Hawkley, Ashker v. Brown, Case No. 4:09-cv-05796-CW. Hinds, M., & Butler, J. “Solitary confinement: Can the courts get inmates out of the hole?” Stanford Journal of Civil Rights & Civil Liberties, 11(2), 331-372. “In California prisons, solitary confinement sentences are carried out with greater care.” Archdye. 27 Dec. 2019. Web. Lobel, J. “Litigation to end indeterminate solitary confinement in California: The role of interdisciplinary and comparative experts.”J. Lobel & P.S. Smith (Eds.), Solitary confinement: effects, practices, and pathways toward reform. Oxford University Press: 2020. Mays v. County of Sacramento (2019). Class action (proposed) consent decree. Case 2:18-cv-02081-TLN-KJN Document 85-1.

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McCluskey, M. “Sacramento’s quest to end solitary confinement for kids.” Pacific Standard. 5 Apr. 2018. Web. Office of Governor Gavin Newsom. “Governor Newsom signs criminal justice bills to support reentry, victims of crime, and sentencing reform.” 8 Oct. 2019. Web. Palta, R. “Hard time or inhumane punishment? Inside the Corcoran prison SHU: Security Housing Units.” KPCC. 8 Oct. 2013. Web. Pohl, J., and Gabrielson, R. “California’s jails are in a deadly crisis. Here’s how experts suggest fixing them.” ProPublica. 8 Jan. 2020. The Prison Law Office. (2019). Class action update May 2019. Chavez v. County of Santa Clara U.S. District Court for the Northern District of California Docket No. 1:15-cv05277-RMI. Raemisch, R. “Why we ended long-term solitary confinement in Colorado.” New York Times. 12 Oct. 2017. Reiter, K. Pelican Bay Prison and the rise of long-term solitary confinement. Yale University Press: 2016. Sullivan, L. “At Pelican Bay Prison, a life in solitary.” NPR. 26 Jul. 2006. Web. UN Human Rights Council. “United States prolonged solitary confinement amounts to psychological torture, says UN expert.” United Nations Human Rights Office of the High Commissioner. 28 Feb. 2020. Vansickle, A. “California’s jails are so bad some inmates beg to go to prison instead.” Los Angeles Times. 23 May 2019. Washburn, M., and Menart, R. “Unmet promises: Continued violence and neglect in California’s Division of Juvenile Justice.” Center on Juvenile and Criminal Justice. 2019.

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THE JUDICIAL FRAMEWORK TO ABOLISH THE DEATH PENALTY IN THE UNITED STATES B Y JU LI ANN E GR I FFI N Introduction Today, the United States criminal justice system represents the way in which racism has been institutionalized in the foundation of this country. Riddled with race disparities that are so often ignored by the legislature and judiciary, this system disproportionately prosecutes minorities. Though it has become increasingly condemned, the Courts have too often resorted to the use of capital punishment, therefore disproportionately executing minorities. As a result, the judicial system has been increasingly reliant on the constitutionality of the 8th Amendment and the way this Amendment intersects with capital punishment politics. The largest problem, however, lies in the Court’s inability to recognize race as the primary factor representing 8th Amendment violations in these circumstances. This piece explores how different definitions of cruel and unusal punishment affects the judicial framework for abolishing the death penalty in the United States. In Section 2, we explore the history of capital punishment and the implications of the brief moratorium instituted in 1972. Section 3 dives into examples of judicial limitations imposed by the Supreme Court and the relationship between the 8th Amendment and national consensus that allows the court to come to their decision. Finally, Section 4 considers the invisisbility of race in capital punishment litigation and its effect on the future deliberations of the death penalty. By analyzing the ways the 8th Amendment is already used in capital punishment cases, it becomes clear that the factor of race is always ignored. Once the United States judiciary recognizes the inherently racist and biased system of the capital punishment sytem, the country will see real strides towards abolition. The Early Years of Capital Punishment in the U.S. Racism in the United States is structurally intertwined within the functions of the criminal justice system. Though the most well-known examples of structural racism may be the era of slavery or Jim Crow Laws, the deeply racist history of capital punishment can be traced to the being of the New Republic. Even during the seventeenth century, when Black people represented a very small portion of the population, Black execution rates significantly exceeded White execution rates per capita, though White executions held the majority (Steiker and Steiker 245). As the slave population increased throughout the eighteenth century, so did the use of capital punishment in the South and the discrepancies in execution rates. For Black citizens at this time, the severity of the crime did not necessarily determine the severity of the sentence. Therefore, despite the demographics of the population, the executed majority in the United States shifted from the White population to the Black population (246). However, as public opinion surrounding the morality of capital punishment swept through the nineteenth century, the North and the Midwest attempted to move towards abolition. The South, on the other hand, actually abolished death sentences for White people, further cleaving those disproportionate rates (247). Though race was

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becoming a visible determinant in the criminal justice system during the late nineteenth century, the conversation surrounding thes sanctity of the death penalty was more so focused on the methods of execution. In 1878, the court considered the constitutionality of Utah’s death by firing squad method, explicitly alluding to the method as a violation of the 8th Amendment for the first time (Wilkerson v. Utah, 99 U.S. 130). Though the decision could not assign the extent to which the 8th Amendment applied to these issues of the law, this case set the precedent for the legislative relationship between capital punishment and the 8th Amendment. In the judicial system, this relationship has become reliant on national public opinion. In 1910, defendant Weems was charged with fraud and sentenced to 12 years of hard labor (Weems v. United States, 217 U.S. 349). Throughout his defense, Weems referred to the 8th Amendment and argued that his sentence was unconstitutional as it was cruel and unusual. The Supreme Court, “acknowledged the Eighth Amendment to be ‘progressive ... [and] may acquire meaning as public opinion becomes enlightened by a humane justice’” (Anderson 1-33). This case determined the way in which cruel and unusual punishment could be defined and the way that future court rulings should depend on public opinion. As the public and judicial tensions surrounding the constitutionality of the death penalty has risen, the Court began limiting the uses of the death penalty. The first introduction to these limits concerns the case of Furman v. Georgia. A Brief Moratorium In the 1972 case of Furman v. Georgia, Furman was sentenced to death for burglarizing a home and accidentally shooting someone in the act.The defense challenged the constitutionality of Furman’s sentencing. The Supreme Court voted in favor of Furman, explaining that his original sentence violated the 8th Amendment. This decision prompted the four year long moratorium on the death penalty in the United States, during which the Court would exam the constitutionality of capital punishmen under all circumstancest (Furman v. Georgia, 408 U.S. 238). Though Furman v. Georgia provided the Court with an opportunity to abolish the death penalty completely, the variance in concurring opinions reflected the Courts resistance to do so. In their concurring opinions of Furman v. Georgia, Justices Brennan and Marshall were the only members of the Supreme Court who demonstrated the belief that the death penalty is unconstitutional across all cases. Both Justices made explicit references to the institutionally discriminatory history of the death penalty. Justice Marshall exposed the inherent burden that, “falls upon the poor, the ignorant, and the underprivileged members of society… who are least able to voice their complaints against capital punishment” (Keys and Maratea 1). Justice Douglas even went as far to say that the, “arbitrariness [of the death penalty] is pregnant with discrimination” (Keys and Maratea 1). These Justices explicitly referenced the disproportionately racist system that is capital punishment in the United States. Despite the efforts of these Justices to uncover the fundamental constitutional violations of capital punishment, this moratorium did not last long. In a 7-2 decision, the Supreme Court reinstated the death penalty in 1976.

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A New Era of Capital Punishment The 1976 case of Gregg v. Georgia reached the Supreme Court during the moratorium of the death penalty (Gregg v. Georgia, 428 U.S. 153). The state of Georgia sentenced Gregg to death for armed robbery and murder. The decision of the Supreme Court to uphold Georgia’s death sentence in this case uplifted the suspension of the death penalty in the United States. The majority opinion stated that the death penalty did not violate the 8th Amendment in all circumstances. By reinstating the death penalty, the Court dismissed Justices Brennan and Marshall’s concerns that the system is flawed and racist. In doing so, race became an invisible factor of death penalty opposition. Therefore, judicial interference in death penalty litigation has consistently moved further away from these institutional problems. This decision, however, ushered in a new era of judicial limitations that has ultimately paved the way for the future abolition of capital punishment in the United States. The only problem with these limitations is that they never consider race as a key component of sentencing discrepancies. Judicial Sentencing Limitations The first judicial limitations on capital punishment set forth by the Supreme Court came only one year after the decision in Gregg v. Georgia. In the 1977 case of Coker v. Georgia, Coker escaped prison, broke into a private home, raped the woman of the house, and stole her car to escape (Coker v. Georgia, 433 U.S. 584). The woman survived, but Coker was sentenced to death by the Georgia courts. The decision was reversed by the Supreme Court in a 7-2 decision, stating the excessive constitutional violation of the 8th Amendment in instituting the death penalty for a nonlethal crime. In a more recent, but similar case, the Court considered the constitutionality of imposing a death sentence for the nonlethal rape of a child. The Supreme Court voted in favor of the defendant in the 2008 case of Kennedy v. Louisiana,concurring that the decision of the Louisiana Courts violated the 8th Amendment (Kennedy v. Louisiana, 554 U.S. 407). The blanket laws imposed in these cases provide the context of relatively straightforward death penalty limitations. As judicial interference has become more prominent in capital punishment, so does the relevance of the 8th Amendment. Another instance in which the judicial system has imposed explicit limitations on the death penalty concerns the mentally ill. The first efforts by the Supreme Court to protect this group is exemplified by the 1986 case Ford v. Wainwright. Ford was tried by the Florida courts and sentenced to death for murder. The court did not have any indication that Ford was mentally ill at the time of the murder, however, after receiving this sentence, his mental stability worsened (Ford v. Wainwright, 477 U.S. 399). The government of Florida then tested Ford’s psychological competency, but refused to bring the case back to the courts. After reaching the Supreme Court, the decision deemed the execution of the mentally ill to be inhumane. Although Ford v. Wainwright seemed to produce a blanket rule like that of Gregg v. Georgia, the reversal of the Court’s decision came in 1989 with the case of Penry v. Lynaugh (492 U.S. 302). During Penry’s initial trial, the jurors were aware of Penry’s severe mental illnesses, but they were not informed that this information could impact their final sentencing decision.

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Therefore, Penry was sentenced to death for murder. Penry argued that the jurors were misled and, more generally, the capital punishment of mentally ill defendants violates the 8th Amendment. When brought to the Supreme Court, the Justices explained that the jurors should have been aware of the impact that mental illness can have in capital punishment sentencing. However, they denied the accusation that death sentencing of defendants with mental illnesses is a violation of the 8th Amendment. Instead, the Supreme Court determined mental illness as a factor to merely lessen the culpability of a crime. This decision was reversed, however, by Atkins v. Virginia. Daryl Atkins was sentenced to death by the Virginia Supreme Court despite the testimony of a psychologist, deeming Atkins mentally ill. The court maintained their decision, referring to the ruling in Penry v. Lynaugh that permitted the execution of the mentally ill. When the case was brought to the Supreme Court, the decision was reversed. The Justices relied on the increasing number of states that began protecting the mentally ill from death sentences after the decision of Penry v. Lynaugh. The newfound consensus of individual states regarding the constitutionality of this punishment, ulitmately lead to the Supreme Court’s decision to protect the mentally ill from the death penalty. This case proved to be instrumental in the future deliberations regarding judicial limitations of the death penalty. In another judicial attempt to limit the death penalty, the court consider the age of defendants. In 1988, Oklahoma Courts sentenced a 15 year old boy to death for murder in Thompson v. Oklahoma (487 U.S. 815). The Supreme Court deemed this sentence unconstitutional as a violation of the 8th Amendment. More specifically, the court stated that the execution of a person under the age of 16 years of age is unconstitutional. One year later in Stanford v. Kentucky, the court considered constitutionality of death penalty sentencing of defendants exactly 16 or 17 years of age (Stanford v. Kentucky, 492 U.S. 361). Similar to the deliberations of Atkins v. Virginia, the court focused on public opinion and precedents set by other states. The Supreme Court did not rule in favor of the 17 year old sentenced to death because there was no national consensus in the United States at the time. Therefore, they left the power to the states to decide the constitutionality of death penalty sentencing of minors. The basic context of Roper v. Simmons is extremely similar to the previous capital punishment cases dealing with juveniles. In 1993, Simmons was sentenced to death at the age of 17 in the state of Missouri and persistently tried to appeal the decision with no luck. It was not until the 2002 Supreme Court case, Atkins v. Virginia, that the court of Missouri reconsidered Simmons’s case. The incorporation of national opinion in Atkins’s defense argument expanded the court’s discretion in death penalty cases. The Supreme Court referenced the new majority opinion in the states that the execution of minors is disproportionate and inhumane. Therefore, largely in part to the court’s reliance on the shifting national public opinion, Stanford v. Kentucky was reversed and the execution of minors was deemed unconstitutional. The standards that the Supreme Court has imposed on the imposition of the death penalty represents some movement towards either strict regulation or complete abolition. The Supreme Court deemed the institution of the death penalty completely unconstitutional, despite unique circumstances in any future cases. In the cases of Atkins v. Virginia and Roper v. Simmons, we see

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the growing power of national consensus on the decisions of the Supreme Court. The court has been able to control many demographic factors, but not the one most intertwined in the criminal justice system: race. Though race has not been truly considered a component in judicial limitations, the Supreme Court has established a framework to constrict the death penalty. In order for the Supreme Court to abolish the death penalty, the public must fully realize and condemn the history of death penalty sentencing and focus on the visibility of race in the criminal justice system. Supressing Racial Visability in Death Penalty Sentence The politics surrounding public support and opposition of aboltion have proven to increasingly impact judicial and legislative limitations on the death penalty. Since the earliest use of capital punishment, the United States had seen consistent public support. However, in the same way that the judicial opinions of the death penalty have very obviously changed, so have the national public opinion. According to a Gallup Poll, “for the first time in Gallup's 34-year trend, a majority of Americans say that life imprisonment with no possibility of parole is a better punishment for murder than the death penalty is” (Jones 2019). Across all party lines, there have been movements in each party towards life imprisonment over the death penalty (Cheng 73-90). More specifically, Democrats and Independents prefer life imprisonment over the death penalty. Republicans, on the other hand, do still favor the death penalty, but since 2014, the factor has decreased by 10% and moves closer to a majority in favor of life sentences (Jones). Though the public support of the death penalty in states that use the death penatly disproportionately more is signficantly higher than the national averages, the use of capital punishment in these states have decreased drastically. In a study researching geographic disparities in death penalty sentencing, “[in] the 3,144 counties or their equivalents in the United States, just 29 counties averaged more than one death sentence a year. ‘That 1 percent of counties accounts for roughly 44 percent of all death sentences,’ since 1976” (Ford 2015). In all parts and across all parties of the United States, the public opinion data showcases a national movement away from the death penalty. In reference to capital punishment in America, according to Chief Justice Warren, “cruel punishment should be assessed in light of the ‘evolving standards of decency in a maturing society’” (Hogkinson 326). Therefore, the judicial decisions and limitations regarding capital punishment should also be moving away from the death penalty. However, since the country as a whole has not framed the abolitionist argument in the context of race disparities, the argument against capital punishment is incomplete and less effective. The root of this problem comes from the Supreme Court’s inability to confront the impact of race politics in death penalty sentencing, even when provided with extensive empirical data. The case of McCleskey v. Kemp exemplifies judicial awareness of the invisibility of race in capital punishment deliberations. The state of Georgia charged McCleskey with murdering a police officer and sentenced him to death. When the case was brought to the Supreme Court, the defense focused on statistical evidence that proved that the system in Georgia discriminates against black defendants. Headed by University of Pennsylvania Professor David C. Baldus, the research considered 2,500 homicides and 230 variables (Steiker 8). The Baldus Study found that, “race was

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a stronger predictor of who would be sentenced to death in Georgia than many of the aggravating factors commonly used to procure the death penalty” (Keys 1). More specifically, the study found that black defendants who kill white victims have the highest probability of incurring a death sentence (3). Despite the completeness and accuracy of the study, the Supreme Court rejected the notion to consider the study as proof of a constitutional violation in this specific case. By dismissing the empirical evidence of the Baldus Study, the Supreme Court dismissed the visbility of race in capital punishment politics. Exactly 30 years later, when reviewing the outcome of McCleskey v. Kemp, Baldus explained that the decision, “nearly eliminated any incentive for state or federal courts and legislatures to address the issue of racial discrimination in capital sentencing” (Keys 83). The Supreme Court ultimately ignored the evidence that the disproportionate execution sentence of blacks is a violation of the 8th Amendment as a way to avoid the challeneges that come with abolishing the death penalty. At the time, the country was not ready for, nor in favor of, abolition. As public opinion has shifted against capital punishment, the judicial limitations on the death penalty have increased. However, instead of focusing on the structural racism entrenched in the politics of capital punishment, the judicial system has chosen to focus on other factors. The precedent that the decision of McCleskey v. Kemp set represents the intended invisibility of race, but also the future of the death penalty. Conclusion The potential aboliton of the death penalty rests on the the actions of the judicial system. The framework to do so has already been created by the Supreme Court. The moratorium set forth by Furman v. Georgia gave space for the argument that implicit racial bias has always drastically affected death penalty sentencing. However, by reinstating capital punishment in Gregg v. Georgia, the court resorted to judicial limitations in order to control the inherently biased actions of the states. As the judiciary limits the death penalty by reason of cruel and usual punishment, we see the way that public opinion has moved towards opposition and aboltion. In the cases of Atkins v. Virginia and Roper v. Simmons, the Supreme Court came to their decision almost completely based on public opinion and state litigation. The relationship between 8th Amendment violations and the national consensus provides the foundation for the country to replace executions with life imprisonment sentences. In order for the Supreme Court to abolish capital punishment, they need to allow the disproportionate data to be visible. The case of McCleskey v. Kemp proved the discriminatory history of capital sentencing in Georgia through empirical data. The Supreme Court disqualified the effect the Baldus Study could have had on capital punishment politics, however, directly resulting in the movement away from the argument of race politics. By suppressing the visibility of race in the criminal justice system, the judicial system intentionally avoids the most apparent component in the institution of a death sentence. However, the Supreme Court does continue to develop blanket laws and increase control of the death penalty. Once the judicial focus of capital punishment litigation shifts to the dark history of racial bias, then, in combination with the increasing proponents of life imprisonment sentences, the inherent discriminatory nature of capital punishment will be revealed and the United States will have to move towards abolition.

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References Anderson, Brian Daniel. “Roper v. Simmons: How the Supreme Court of the U.S. has Established the Framework for Judicial Abolition of the Death Penalty.” Ohio Northern University Law Review, no. 221 (2011): 1-33. Atkins v. Virginia, 536 U.S. 304 (2002). Cheng, Jesse. "Humanity’s Subtensions: Culture Theory in US Death Penalty Mitigation." Social Analysis 61, no. 3 (2017): 73-90. Coker v. Georgia, 433 U.S. 584 (1977). Ford, Matt. “The Death Penalty Becomes Rare.” The Atlantic, April 21, 2015. Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153 (1976). Hodgkinson, Peter, and Schabas, William A., eds. Capital Punishment: Strategies for Abolition. Cambridge: Cambridge University Press, 2004. Accessed May 1, 2020. Hood, Roger and Carolyn Hoyle. “Abolishing the Death Penalty Worldwide: The Impact of a ‘New Dynamic.’” Crime and Justice, no. 1 (2009): 1-51. Jones, Jeffery M.. “Americans Now Support Life in Prison Over Death Penalty.” Gallup, November 25, 2019. Kennedy v. Louisiana, 554 U.S. 407 (2008). Keys, David P., and Maratea, R. J., eds. Race and the Death Penalty: The Legacy of Mccleskey V. Kemp. Boulder, CO: Lynne Rienner Publishers, 2015. Accessed May 2, 2020. McCleskey v. Kemp, 481 U.S. 279 (1987). "Pennsylvania and the Death Penalty: Abolishing Capital Punishment is the Only Solution for a Broken System." New York Times (1923-Current File), 2012. Penry v. Lynaugh, 492 U.S. 302 (1989). Roper v. Simmons, 543 U.S. 551 (2005). Stanford v. Kentucky, 492 U.S. 361 (1989).

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Steiker, Carol S. and Jordan M. Steiker. "The American Death Penalty and the(in)Visibility of Race." The University of Chicago Law Review 82, no. 1 (2015): 243294. Thompson v. Oklahoma, 487 U.S. 815 (1988). Weems v. United States, 217 U.S. 349 (1910). Wilkerson v. Utah, 99 U.S. 130 (1878).

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REIMAGINING CRIMINAL JUSTICE: THE RESTORATIVE-TRANSFORMATIVE MODEL BY NIA GOODRIDGE Introduction We are locking human beings in cages. Our prisons are overflowing; "despite making up [only] 5% of the global population, the U.S. has nearly 25% of the world's prison population" (NAACP). With approximately 3 million people in jail and prison and more than 6.7 million individuals under correctional control, there is no other criminal justice system in the world that is more in need of reform than the United States (Jones). We are in a crisis that demands us to look deep into our heart of hearts and ask the following question: Who is justice for, and who gets to award it? Our current criminal justice system is "grounded in a retributive structure based on a punitive discipline such as the death penalty and life prison sentences" (Nocella 1). According to the Oxford English Dictionary, retributive justice or punitive justice is "a system of criminal justice based on the punishment of offenders rather than on rehabilitation.” Retributive justice, in combination with the War on Drugs and the post-9/11 era of terrorism, has resulted in a 500% increase in the U.S. jail and prison population in the last 40 years (Nocella 2; Uggen). Since 1991, however, the rate of violent crime in the U.S. has fallen by about 20% (NAACP). By adopting a criminal justice system rooted in a retributive process, the U.S. has increased the lengths of mandatory minimum sentencing for non-violent offenses (e.g. marijuana possession), made laws harsher (e.g. three-strikes laws), strengthened post-incarceration surveillance systems, and created stigmatizing labels that effectively bar previous offenders from reentry into society (Maur and Ghandnoosh; Nocella 2; Alexander 94). The current criminal justice system is broken. If we do not learn from such brokenness, we will continue to see high recidivism rates, vast racial and socioeconomic disparities, rampant police brutality and misconduct, and astonishingly high wrongful conviction rates (Karp and Frank). There are three branches of the criminal justice system: law enforcement, courts, and corrections (i.e., jails, prisons, and paroles). According to Nocella, there are "too many cases dumped onto too few lawyers, judges, juries, and courtrooms" and too many lives ruined as a result (2). This paper argues that the U.S. needs to reassess its retributive justice philosophy, consider other forms of justice, and update its criminal justice system and education practices accordingly. It includes a discussion of a model for the court system but does not cover recommendations for the treatment of violent offenders. Three Forms of Justice: Retributive, Restorative, and Transformative As mentioned earlier, the U.S. criminal justice system is rooted in retributive or penal justice. In the U.S., this is one of three significant barriers inhibiting criminal justice reform. The roots of retributive justice can be traced back to the first written law in world history, the Code of Hammurabi (Mathews). The Code established the concept of "an eye for an eye" and the field of

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criminology, which studies "perspectives on social control, discipline, and punishment." Later, in 17th century Europe, Cesare Beccaria and Jeremy Bentham were key contributors to the philosophy of criminology. Beccaria was an Italian jurist and the author of On Crimes and Punishments, penology's founding work. Bentham was an English philosopher, jurist, and social reformer "who designed the architectural blueprint of the panopticon, a powerful method of surveilling populations of people in prisons or the public" (Nocella 1). From its origins with Hammurabi, Beccaria, and Bentham, retributive justice asks three central questions: "What rule has been broken? Who is to blame? What punishment do they deserve?" (Zehr). Although these questions create social order and often yield decisive outcomes, retributive justice can quickly dissolve into the individual quest for revenge and cycles of oppression within inequitable societies. Furthermore, the current criminal justice system favors some groups over others. According to the NAACP, African Americans are incarcerated at more than five times the white incarceration rate in the U.S. African Americans and Hispanics represent 56% of the incarcerated population in the U.S. But only 32% of the U.S. population. Moreover, almost 75% of formerly incarcerated people remain unemployed a year after their release due to their criminal record. This "increases the likelihood that an individual will [reoffend and] return to jail or prison" (NAACP). Such racial and socioeconomic disparities within and outside the criminal justice system invalidate a retributive justice approach in the United States for several reasons. First, when specific demographics are policed more than others, justice is distorted. Second, in this system, social inequalities are a more significant indicator of the likelihood that a person will break the law than their personal or moral failings. Moreover, retributive justice in the American criminal justice system is entangled in many private and corporate interests, which leads to another significant barrier to reform: capitalism in the prison industrial complex. According to Ashley Hunt at The Corrections Project, the prison industrial complex is "the interaction of all the interests who help expand the prison system, some intentionally, some coincidentally, but all for reasons other than our safety and justice" (2018). In a "system where profit is more important than people, where people are split along the lines of race, gender and culture so that their labor, resources, and power can be exploited and monopolized," Marxist critiques of capitalism ring true today (Hunt 2018). Under retributive justice, exploitation between the capitalist and the working class (that is, the major corporations and incarcerated laborers) is occurring (Alatas and Sinha 49; Nocella 2). “Private prison builders and prison service companies … [are] spend[ing] millions to persuade state and local governments to create new crimes, impose harsher sentences, and keep more people locked up so that they can earn more profits" (Stevenson 16). Consequently, the current criminal justice system perverts the original aims of retributive justice: retribution, deterrence from crime, rehabilitation of offenders, and social protection (Libretexts 2020). Besides monetary incentives, the third and final barrier inhibiting reform is a lack of interest convergence. Interest convergence is a thesis pioneered by American lawyer and critical race theorist Derrick Bell. According to Bell, "the majority group tolerates advances for racial

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justice only when it suits its interest to do so." Racism in the criminal justice system advances the interests of whites by making a business out of mass incarceration and "exploiting racial hostility and resentment for political gain without making explicit reference to race" (Delgado et al. 177). For example, terms like “welfare queen” and “criminal predator” are implicitly racist descriptions of BIPOC (Black, Indigenous, and People of Color) communities (Alexander 48). Until white racist interests are disentangled from the criminal justice system, there will be constant resistance from the white elites and working-class whites to adopt new forms of justice. These three barriers to criminal justice reform — our current penal philosophy, the capitalism entrenched in the prison industrial complex, and a lack of interest convergence due to racial and socioeconomic disparities within the incarcerated population and between the incarcerated and the non-incarcerated — reinforce the brokenness of the criminal justice system and use retributive justice as a facade to validate it. To move towards a more equitable criminal justice system, the U.S. needs to adopt a new form of justice upon which it can base its criminal justice procedures. This paper will now explore these other forms, restorative justice and transformative justice, as possible alternatives. Restorative justice's conception precedes that of transformative justice. According to the Oxford English Dictionary, restorative justice is "a system of criminal justice that focuses on the rehabilitation of offenders through reconciliation with victims and the community at large." Restorative justice can be traced back to the indigenous peacemaking practices of the Aborigines, the Maoris, and the First Nations in Australia, New Zealand, and Canada, respectively (Nicholl 95). In the 1970s, peacemaking criminology drew on these indigenous practices and termed them restorative justice (Nocella 3). Restorative justice differed from retributive justice in its belief that "victims and offenders need to come together and talk about what happened to achieve peace and hopefully restoration" (“Restorative Justice and Transformative Justice” 2013). Since the 1970s, peacemaking criminologists have published multiple works to solidify the social theory of restorative justice (Nocella 3). As a social theory, restorative justice holds that "crime harms [all] people" (i.e., the victims, offenders, and communities) in different ways (Nicholl 99). Therefore, "justice [should be] about building peace, not revenge" (101). In the late 1970s, the mediator, peace educator, and community organizer Howard Zehr became restorative justice's first known practitioner in the U.S. In a halfway house for recently released inmates in Indiana, Zehr used "community circles to bring victims and offenders together to heal, forgive, and take accountability" (Nocella 3). As summarized by Zehr, restorative justice as a praxis asks the following questions: "Who has been hurt? What are their needs? Who is obligated to address these needs?" Who has a "stake" in this situation and what is the process to involve them in making things right?" (2011). Although restorative justice is often hailed as the perfect alternative to retributive justice, it does not come without flaws. Surprisingly, restorative justice's major flaw overlaps with that of retributive justice. Both fail to consider the causes of the larger racial and socioeconomic disparities present in the criminal justice system, such as the over-policing of BIPOC and lowincome communities and high rates of unemployment and poverty among formerly incarcerated

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people. Thus, both retributive justice and restorative justice do not create any necessary structural changes. By ignoring this structural violence, restorative justice indirectly "holds [only] individuals (not systems) responsible" (AORTA 2020). This creates the cyclical nature of oppression that social thinker Albert Memmi unpacks in his well-known book The Colonizer and The Colonized (1957). "Terror and exploitation dehumanize, and the exploiter authorizes himself with that dehumanization to carry his exploitation further." Through this dehumanization of the oppressed, Memmi argues "the oppressors produce and maintain by force the evils that render the oppressed, in their eyes, more and more like what they would have to be like to deserve their fate" (xxvi). Unlike retributive justice, restorative justice dehumanizes implicitly by not recognizing the roots of violence and explicitly by incorporating the victims and their perspectives in a limited fashion (AORTA 2020). Furthermore, the current structure of the criminal justice system is not conducive to restorative justice practices. According to Sliva, the reading of Miranda Rights teaches offenders "do not apologize and do not take accountability because you might jeopardize your case." Secondly, most states restrict contact between the offenders and the victims even if both parties want to interact (Sliva). While these barriers protect the offender's due process rights and often ensure the victim's safety, they can also become roadblocks to the healing of both parties. In order for restorative justice to work in the American criminal justice system, there would have to be mass upheaval in the system’s structure and laws. Even if this is achieved, the efforts will be futile if our society does not commit to changing in conjunction with the criminal justice system. Scholars contributed to the framework of transformative justice in order to address this theoretical weakness of restorative justice. Scholarship on transformative justice began in the late 1990s with Ruth Morris, a Canadian legal reformer. Morris argued "that while restorative justice challenges the retributive justice system and brings people together, it fails to recognize the socio political and economic issues addressed by transformative justice" (Nocella 4). Transformative justice asks the following questions: "What social circumstances prompted the harmful behavior? What structural similarities exist between this incident and others like it? What measures could prevent future occurrences?" (Zehr). In asking these questions, transformative justice "seeks to respond to violence without creating more violence and engaging in harm reduction to lessen the violence… [it] can be thought of as a way of making things right, getting in the ‘right relation,’ or creating justice together" (Mingus). In addition, transformative justice does not rely on any form of state intervention (e.g. police, prisons, the legal system, or the foster care system) and has been adopted by Black and LGBT communities (AORTA 2020). Rather than being reactive, transformative justice is proactive in addressing violence by cultivating the environment and skills to handle it. Consequently, transformative justice "addresses very distinctive issues that these other approaches to conflict and justice do not" such as poverty, trauma, heterosexism, cis-sexism, white supremacy, misogyny, ableism, displacement, and xenophobia (Mingus). According to Nocella, transformative justice goes beyond being "an alternative to a criminal justice system,

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but a social justice philosophy for peace with tools to achieve such goals." By being a "nondogmatic, process-based philosophy" it integrates the victims and their communities more holistically than retributive justice and restorative justice (Nocella 8). An example of transformative justice in practice is the Alternatives to Violence Project (AVP). Established in the early 2000s, AVP conducts workshops on relationships, communication, and conflict resolution in prisons, jails, and communities to reduce future incidents of violence (Nocella 4, 5). Every day, organizations like AVP are writing the story of transformative justice. Recommendations for U.S. Criminal Justice Reform Transformative justice is still relatively new compared to retributive justice and restorative justice As a result, few models and extensive works of scholarship on transformative justice exist. Due to the novelty of transformative justice, this paper recommends that criminal justice reform employ restorative justice and transformative justice, This is a unique recommendation because the majority of criminal justice reformers propose a combination of retributive justice and restorative justice. This does not work. After all, "our correctional institutions were born of punishment, forged through punishment, and remain fundamentally rooted in ideals that are directly correlated to punishment" (Mathews). A criminal justice system that adds restorative justice as an afterthought will continue to allow punishment to eclipse rehabilitation and reconciliation. Therefore, criminal justice reform will need to leave retributive justice behind, especially when it comes to non-violent offenses. In tandem, restorative justice and transformative justice focus on healing rather than punishment through victim-offender reconciliation and community-building workshops. Restorative and transformative justice also create a sustainable approach to reform through their institutionalized and deinstitutionalized practices. Moreover, restorative and transformative justice can use crime "as an opportunity for building the capacity of ordinary people of the community [to handle conflict]” (Nicholl 96). Conflict can be "an opportunity to address larger socio-political injustices" while ensuring the needs of the victim and the offender are still being met (Mingus). One applicable historical example of the restorative-transformative justice model is South Africa’s first Truth and Reconciliation Commission (TRC). Established in 1995 in Cape Town, the TRC was a court-like body that hosted public hearings between the perpetrators of apartheid crimes and their victims (Republic of South Africa 2001). According to the human rights activist and TRC chairman Archbishop Desmond Tutu, the purpose of the TRC was to help the country transcend "the cycles of retribution and violence that had plagued so many other countries during their transitions from oppression to democracy." Tutu believed true reconciliation required forgiveness and this forgiveness could not occur without conflict. In allowing victims to tell their stories and hear the confessions and apologies of the offenders, Tutu argued that the TRC "allowed South Africans to imagine a new beginning—one based on honesty, peace, and compassion" (2004). While the format of the TRC was restorative justice, its impact was rooted in a transformative justice philosophy. By acknowledging and memorializing the South African

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apartheid atrocities, the TRC simultaneously addressed the enormous socio-political injustice of racism and therefore reduced the likelihood of a resurgence of apartheid or apartheid-like oppression. The future of all those touched by the TRC, and South Africa as a whole, was transformed by the power of bearing witness and forgiveness. As Tutu puts it, "Forgiveness gives us the capacity to make a new start...In the act of forgiveness, we are declaring our faith in the future of a relationship and in the capacity of the wrongdoer to change. We are welcoming a chance to make a new beginning" (2004). Like the Brazilian educator Paulo Freire, Tutu and the practitioners of the TRC understood that the key to ending cycles of violence was the oppressed liberating themselves and their oppressors (Freire 44). The U.S. criminal justice system is in desperate need of a truth and reconciliation commission with a philosophy of transformative justice. In a country where people refuse to make the connection between chattel slavery, Jim Crow, and mass incarceration, a truth and reconciliation commission in the U.S. could begin to heal the wounds of institutional racism and address its larger socio-political injustices (Alexander 2012; Souli 2020). Before the U.S. can engage in pragmatic criminal justice reform, there needs to be a massive reckoning with our nation's bloody past and a paradigm shift that outgrows "the outdated punitive goals of deterrence and retribution [and moves towards]... rehabilitation and resocialization" (Stickney 208). Conclusion There is no real safety and no true healing within the current criminal justice system. The time to break away from the brokenness of the current criminal justice system and its retributive justice approaches is now. The time to institute a restorative-transformative justice philosophy in law enforcement, courts, corrections, and society is now. In light of the Black Lives Matter movement and protests of the 2020 police killings of George Floyd, Breonna Taylor, and other unarmed Black citizens, "76% of Americans now consider racism and discrimination a 'big problem,' an increase of 26 percentage points from 2015" (Souli 2020). Moreover, according to a Forbes poll conducted in Summer 2020, "the vast majority of Americans—an overwhelming 95%—are in favor of at least some criminal justice system and police reform" (Porterfield 2020). Such large-scale support of criminal justice reform was unthinkable just a decade ago. The task of reform will be enormous, but the price of not doing so will be even greater.

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References AORTA: The Anti-Oppression Resource and Training Alliance. “Punitive, Restorative, and Transformative Justice.” 2020. Web Alatas, Syed Farid, and Vineeta Sinha. Sociological Theory Beyond the Canon. Palgrave Macmillan UK: 2017. Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New Press, 2012. The Alternatives to Violence Project. “Home.” Alternatives to Violence Project. Web. Delgado, Richard, et al. Critical Race Theory (Third Edition): An Introduction. NYU Press, 2017. Freire, Paulo. Pedagogy of the Oppressed. Continuum International Publishing Group: 2005. Hunt, Ashley. “Prison Maps.” The Corrections Project, 17 Sept. 2018. Web. Jones, Alexi. “Correctional Control 2018: Incarceration and Supervision by State.” The Prison Policy Initiative. 2018. Web. Karp, David R., and Frank, Olivia. “Anxiously Awaiting the Future of Restorative Justice in the United States.” Taylor & Francis Online, 2015. Libretexts. “7.5B: Class, Crime, and the Criminal Justice System.” Social Science LibreTexts. 16 Aug. 2020. Web. Mathews, Brandon W. “The Surprising Reason Our Correctional System Doesn't Work.” TEDxTalks, 13 Sept. 2017. Mauer, Marc, and Nazgol Ghandnoosh. “Long-Term Sentences: Time to Reconsider the Scale of Punishment.” The Sentencing Project, 5 Nov. 2018. Memmi, Albert. The Colonizer and The Colonized. Orion Press: 1957. Mingus, Mia. “Transformative Justice: A Brief Description.” Transform Harm, 11 Jan. 2019. The NAACP. “The Criminal Justice Fact Sheet.” NAACP, 10 July 2020.

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Nicholl, Caroline G. “Community Policing, Community Justice, and Restorative Justice: Exploring the Links for the Delivery of a Balanced Approach to Public Safety.” U.S.Department of Justice Office of Community Oriented Policing Services: 1999. Nocella, Anthony J. “An Overview of the History and Theory of Transformative Justice.” Peace & Conflict Review, vol. 6, no. 1, 2011, pp. 1–10. The Oxford English Dictionary, Oxford University Press, December 2020. Porterfield, Carlie. “A Whopping 95% Of Americans Polled Support Criminal Justice Reform.” Forbes, 23 June 2020. The Republic of South Africa, Department of Justice and Constitutional Development. “The Truth and Reconciliation Commission.” Justice.gov.za. Web. “Restorative Justice and Transformative Justice: Definitions and Debates.” Sociology Lens, 5 Mar. 2013. Sawyer, Wendy, and Wagner, Peter. “State Policy Drives Mass Incarceration (Numbers).” Prison Policy Initiative, 2016. Sliva, Shannon. “How Restorative Justice Could End Mass Incarceration” TEDxTalks, 18 July 2019. Souli, Sarah. “Does America Need a Truth and Reconciliation Commission?” Politico, 16 Aug. 2020. Stevenson, Bryan. Just Mercy: A Story of Justice and Redemption. Spiegel & Grau: 2015. Tutu, Desmond. “Truth and Reconciliation.” Greater Good Magazine. 1 Sept. 2004. Uggen, Chris. “Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System.” The Sentencing Project, 1 May 2018. Zehr, Howard. “Restorative or Transformative Justice?” Restorative Justice Blog, 11 Mar. 2011.

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STRIPPING DEMOCRACY TO RAISE TEST SCORES: A SCHOOL RECEIVERSHIP CASE STUDY BY TIANA BROTE When a business is failing, it enters into receivership. A receiver is an appointed trustee that comes in to take over the company assets and avoid bankruptcy (Kenton 2019). The receiver is charged with completing a project, which can range from selling assets to pay off debts, to increasing workplace efficiency and working with creditors (Palmer). In recent decades, receivership has been adopted by states to improve school district performance. In these cases, receivers are assigned to underperforming school districts and can override decisions and make significant changes. Although these practices may be helpful for a business because they attempt to maximize profit, minimize debt, and increase workplace efficiency, I argue that these are not the same goals of public schools. What helps for-profit companies does not necessarily help public schools, which are a public good and community hub. Professor David Hursh cautions the public school system from adopting capitalistic forms of accountability, saying "educators need to question whether neoliberal approaches to education should replace the previously dominant social democratic approaches" (Hursh 2007). Receivership patterns in districts with high populations of students of color beg the following questions: (1) Do business models like receivership belong in social service programs like education? (2) Does a receiver have too much power over a school district and community? and (3) In the case of Holyoke Public Schools, is receivership through test-based accountability a fair response, considering the unique demographics of the district? In 2015, Holyoke Public Schools (HPS) in Holyoke, MA made headlines as the second school district in Massachusetts to be placed into receivership. School receivership in Massachusetts occurs when the Massachusetts Board of Elementary and Secondary Education votes that a school district is “chronically underperforming” (Riley & Zrike 2018). The school district was deemed “chronically underperforming” because student performance on tests and graduation rates were considered critically low, indicating that the children attending that district may not have access to the same quality of education as others in the state. When this happened, the policy called for outside intervention and a receiver came in to help “turn around” the school (Riley and Zrike 2018). A receiver is a person or organization responsible for taking charge of a school district and developing a detailed plan and set of goals to increase student performance. The receiver selected to take charge of HPS was Dr. Stephen Zrike. Holyoke was an interesting case because of the ways that its receivership nature varied from that of Lawrence, Massachusetts, the first district to enter into receivership. In 2011, Lawrence was voted into receivership because of its “chronically underperforming” status, coupling student performance with “inconsistent governance and leadership and insufficiently coherent and comprehensive district systems” (“Chronically Underperforming Districts: Frequently Asked Questions”). In comparison, Holyoke was the first Massachusetts district to enter into receivership solely based on evaluation of student performance. This event in Holyoke

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mirrors a larger shift in national implementations of receivership across the country. According to Nelson (2018), state education boards are now frequently using low test scores as a reason for intervention, in comparison to historically intervening because of a district’s “financial mismanagement or cases of other illegal activities at the local level.” In Holyoke, student performance was assessed by test scores and graduation rates (Riley and Zrike 2018). Comparing HPS test scores to state averages may not be the best way to assess student success at HPS. The district houses far more English Language Learners than the state average and the test used to determine performance is the English Language Arts MCAS (“District profile—Holyoke (01370000)”, n.d.). Holyoke is also an interesting district to examine because of the ways the city of Holyoke and the HPS student body are unique to Massachusetts. Holyoke is located in Hampden County, an area that contains over 30% of Massachusetts’ Puerto Rican population (Boston Planning & Development Agency Research Division 2017). Roughly 5,500 students are currently enrolled in Holyoke Public Schools, with near 80% of the students identified as Puerto Rican (“About – Holyoke Public Schools”). Of these 5,500 students, roughly 29% are English Language Learners (ELLs), the majority of whom have been identified as native Spanish-speakers (“District profile—Holyoke”.). Roughly 47% of households in the city of Holyoke speak a language other than English at home. The average household income in Holyoke is $37,954, which means that 30% of residents live below the poverty line. This translates to 84% of the student body being identified as high-need and 78% being identified as economically disadvantaged (“District profile—Holyoke(01370000)”, n.d.). As far as reputations go, Holyoke is historically known as the birthplace of volleyball (“Report: Holyoke” 2019). More recently, it has been identified as the “most dangerous city” in Massachusetts, based on its violent crime and theft rates (Stebbins & Sauter, n.d.). Before being voted into receivership, HPS was falling far behind Massachusetts averages in terms of student attendance, testing performance, and graduation rates. According to the Massachusetts Department of Education, HPS chronic absenteeism was at 28.9% in 2015 , in comparison to 12.9% across Massachusetts. Also, the average number of absent days per HPS student was four days higher than Massachusetts students as a whole (“2015 Report Card Overview—Holyoke(01370000)”, n.d.). Between 2012 and 2015, HPS student ELA MCAS performance was between 32-34%, while the state average was around 69%. The four-year graduation rate was roughly 60.2%, which was nearly 26 percentage points lower than the state average (“2015 Report Card Overview—Holyoke(01370000)”, n.d.). This meant that HPS students were attending school less, performing worse on the MCAS, and were less likely to graduate than many other Massachusetts students. HPS did not accept its receivership status without a fight. The battle between HPS and the Massachusetts Board of Elementary and Secondary Education to resist receivership has been ongoing for over ten years, with HPS pushing back on state-holds on the school. The battle first became publicized in 2003. The superintendent at the time Eduardo B. Carballo argued that the receivership was “not the kind of reward a school district should get when they're working hard,"

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pleading with the board, "I think if you're patient with us . . . I think you're going to see some change" (Kurtz 2003). In 2015, however, the Massachusetts Board of Elementary and Secondary Education decided to go on with the takeover process, and the district has been in receivership ever since. In 2018, the HPS school system renewed its receiver status and its 2015 “Turnaround Plan” for another three years. The policy itself is intended to ensure that all students are receiving highquality education and that the school district is held accountable if this is not the case. According to the report released by receiver Dr. Stephen Zrike, the current receivership period at HPS led to several positive outcomes, like a 7-point decrease in chronic student absence, a 50% reduction in the dropout rate, and a graduation rate increase from 60.2% to 69.9% percent in 3 years (Riley & Zrike, 2018). Despite the improved numbers in terms of student performance, in this essay I will critically assess power dynamics within this receiver-district relationship, potential drawbacks of this relationship, as well as the role of the receiver. Holyoke Public Schools is a part of a larger trend within the U.S., where public school accountability initiatives have led to government takeovers of school districts. New York state has a similar process for receivership, in comparison to Massachusetts. In New York, a school district enters into receivership when it has been deemed “persistently struggling” for ten consecutive school years (Sokol 2015). Massachusetts’ website does not deeply elaborate on the role of the receiver, simply explaining that the receiver is permitted “the authority of the superintendent and school committee,” and “the law permits the receiver to make changes in district policies and practices through the turnaround plan” (“Chronically Underperforming Districts: Frequently Asked Questions,” n.d.). This explanation is vague and does not present the power of receivers in an accessible way. In comparison, New York’s School Boards Association goes into much greater detail. According to the state board, the receiver has wide-ranging authority after setting a school-improvement plan, from “supersed[ing] any decision, policy or regulation… that, in the receiver's sole judgment conflicts with the school plan being implemented by the receiver” to making the school a charter school, eliminating teacher positions, and changing the number of school days per hours (Sokol 2015). In essence, the receiver has the power to change nearly every aspect of the school, except for the students that attend it. With great power comes great responsibility. A receiver is tasked with getting to know a school district within a short time, and then has immense power to make the changes they see fit. And oftentimes, the receiver is not native to the area that the school district they receive is located. This means that receivers may not be the best suited to know what will benefit the students. Because schools are community hubs, a receiver’s choice does not stay within school walls, but rather it reverberates outward and affects entire communities. Nelson (2018) explains the implications of receivership within New Orleans and Detroit when expressing concern for receiver-community dynamics, saying “states participating in the takeover of locally governed schools and school districts generally allow new operators of schools… to replace community norms and replace those norms with new norms. The exchange of norms does not typically involve input from the affected community.” In New Orleans and Detroit, the urban public school districts

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are highly segregated and contain mainly Black students. Receivership in this area has seen norms important to the Black community replaced with hegemonic White norms (Nelson 2018). In this way, receivers can alter the norms within a school if they see these norms as non-beneficial for student performance, regardless of the value that these norms hold within the community. The process of receivership is also undemocratic because members of the community: (1) do not have a say as to whether a school district is under receivership, (2) do not get to select the receiver, and (3) may have any of their decisions vetoed by the receiver. If the majority of schools in the US entering into receivership are hubs for communities of color, is this form of accountability stripping democracy from these communities? Receivers making significant changes often replace elected, local school boards with private school boards to try and improve test scores. The community is not able to vote for the positions on these private boards, nor hold them politically accountable (Nelson, 2018). Recent political debates have focused on voter suppression within national elections, but might receivership be community suppression from local political participation? In assessing the role that receivership has played within HPS, I felt it important to reach out to educators currently teaching within HPS. Mary is a middle school math teacher within the HPS district and has felt a great deal of pressure under receivership. According to Mary, “Our students are put under a lot more stress to achieve higher scores on district and state tests in order for the school to meet the goals that they have set… those goals are placed on the teachers and the students.” Because students feel this increased pressure, the idea of receivership affects the classroom dynamic. She also explained how receivership has hurt teachers, that “curriculums are constantly changing because they are trying to find the best solution” to bring up test scores. This constantly shifting curriculum is “not allowing even the greatest teachers to be able to teach the lesson” because once they adapt to a lesson they are forced to test out a different curriculum. Aside from the broader implications of receivership, this policy has been felt directly within Holyoke classrooms. In this policy review, I have listed several potential concerns with school receivership, including bringing market techniques into public services, the use of test-based accountability, unchecked power, receiver-community dynamics, and lack of political participation in the receivership process. Although in Holyoke, receivership has led to increased test scores, I argue that it is crucial we look beyond the numerical assessments of the school district and instead consider the broader implications of this process. Although Dr. Stephen Zrike may have good intentions with HPS, receivers as a position have a great deal of power over fragile community spaces. My concerns may naturally lead to the following question: if not receivership, then what? Although there is no perfect solution to address the inequalities plaguing US schools, there are policies that could be implemented on the local and national level to mitigate the potential negative consequences of school takeovers. On the local level, if it is necessary to work within the confines of the current receivership system, it is also important to ensure that democratic practices are in place. This means that if a receiver tries to veto a decision, the community should be able to block the veto with majority consensus or appeal it to the Massachusetts Board of

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Education. Additionally, there should be ways that the community can hold the receiver accountable. In the U.S., citizens do not get to decide whether there is a U.S. president. However, citizens are able (to an extent) to vote for who this president is, and there are systems in place to remove and replace that president if they are not meeting citizens’ expectations. I argue that a similar system of democratic accountability must exist within the context of receivership. It is also important to look into what might be lowering test score performance on a deeper level. According to HPS educator Mary, “There’s a lot that needs to be worked on besides just being in receivership.” Mary then went on to explain how although the majority of students in the district are Hispanic, the majority of the teachers at HPS are White non-Hispanic, which she believes deeply harms student achievement, saying, “when students are not seeing teachers who look like them, who know their truth, and know where they come from, and know their struggles, they really aren’t as motivated to hear what you have to say, whether it’s about school or whether it’s not about school.” A study by the National Education Association (NEA) supports Mary’s claims, saying, “a teaching force that represents the nation’s racial, ethnic, and linguistic cultures and effectively incorporates this background and knowledge to enhance students’ academic achievement is advantageous to the academic performance of students of all backgrounds, and for students of color specifically,” (Graham 2014). Hiring a more diverse teacher pool is crucial to increasing student achievement and strengthening school-community interactions. Nationally, the US must reassess how receivership is determined. School performance should not just be determined on test scores and other statistics because it may consequently incentivize the receiver and school administration to meet the score goals, rather than improve the environment of the school. Additionally, the US must reassess how schools are funded. Current inequalities within the US school system can be traced to racism, red-lining, and property taxes funding schools. If funds were distributed more equitably, perhaps there would not be the performance disparities seen in cities like Holyoke. Rather than allowing for these inequalities to exist, and then bringing in a non-democratic actor for the schools to “catch up,” it is better to instead ensure that the schools are on a more equitable playing field to begin with. Finally, state takeovers nationally have not shown significant improvements within school districts (Nelson 2018). This begs the ultimate question regarding receivership: in reviewing all of the potential harm that the receivership process can do to a community, combined with the lack of significant positive results, is this practice even “worth” it?

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References “2015 report card overview—Holyoke (01370000).” Massachusetts Department of Education. Web. “2016 report card overview—Holyoke High (01370505).” Massachusetts Department of Education. Web. “2017 report card overview—Holyoke high(01370505).” Massachusetts Department of Education. Web. “About – Holyoke public schools.” 2019. City of Holyoke Massachusetts. Web. “Chronically underperforming districts: Frequently asked questions.” Definitions. (n.d.). Retrieved November 21, 2019, from Massachusetts Department of Education. Web. “District profile—Holyoke (01370000).” Massachusetts Department of Education. Web. “Every student, every day: A national initiative to address and eliminate chronic absenteeism.” U.S. Department of Education. 10 Jun 2016. Web. Graham, E. (2014, May 16). NEA report: Lack of teacher diversity jeopardizes student achievement. NEAToday. Retrieved December 14, 2019. “Holyoke is the most dangerous city in Massachusetts.” (2019, May 1). WWLP. Web. Hursh, D. (2007). “Assessing No Child Left Behind and the rise of neoliberal education policies”. American Educational Research Journal, 44(3), 493-518. Kenton, W. “Receivership.” Investopedia. Web. Kurtz, M. (2003, July 6). Holyoke District vows to fight possible state takeover risks landing on list of underperformers. Boston Globe. Nelson, S. L. (2018). Could the State Takeover of Public Schools Create State-Create Danger: Theorizing at the Intersection of State Takeover Districts, the School-to-Prison Pipeline, and Racial Oppression. National Black Law Journal, 27, 1-58. Redefining low income—A new metric for k-12 education—Data collection/information Services. Massachusetts Department of Education. Web. Riley, J., & Zrike, S. (2018, October). Holyoke Public Schools chronically underperforming district turnaround plan 2018 renewed plan. City of Holyoke Massachusetts. Web.

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Sokol, P. (2015). Questions and answers on receivership. Retrieved December 5, 2019. NYSSBA. Web. Stebbins, S., & Sauter, M. “Most dangerous city in every state.” Retrieved October 18, 2019, 247WallSt. Web. “U. S. Census Bureau Quickfacts: Holyoke City, Massachusetts.” Retrieved October 18, 2019. US Census Bureau. Web.

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AN OPEN LETTER TO BOSTON'S K-12 SCHOOLS: STUDENTS NEED MORE RESOURCES TO STUDY THEIR ETHNICITIES BY W ENYIN C A O I was in the fifth grade, it had been seven years since I arrived in America, and I felt hatred towards my own ethnicity and culture. I did not know about the history of Chinese Americans in the U.S. at the time. I was also ashamed of my cultural heritage because I was having a difficult time fitting in with other kids in school. Looking back, I am saddened to think that I experienced those feelings as a child about my identity, and I am so grateful that I was able to learn from it and come to reconcile with my inner struggles and love myself. Many children with immigrant backgrounds have probably felt the way that I did before because schools do not teach us to appreciate our immigrant backgrounds. For that reason, schools need to implement more ethnic studies into their curriculum. I know the importance of ethnic studies because as a Chinese immigrant in the U.S. and a student of Boston Public Schools (BPS), I once denied my own culture because I did not have the chance to learn about it. Since most people I knew came from cultural backgrounds that were different than mine, I often felt like an outsider amongst my peers. However, I began to feel differently once I started learning about Asian American history and about Chinatown through a youth leadership program called A-VOYCE (Asian Voices of Organized Youth for Community Empowerment) at Asian Community Development Corporation (Youth Programs, 2020). A-VOYCE is a high-school afterschool program that taught me about community development and helped me to explore my cultural identity. Had I not been part of the group, I still may not be confident about who I am today. Boston Public Schools K-12 need to implement ethnic studies into their curriculum because ethnic-related studies enable students to engage in the world around them, teaching them to stay informed about current related issues. They also inspire students to become active leaders in their community. In the film Precious Knowledge (Palos & McGinnis 2012), Tucson High School's Mexican American Studies Program allowed high school students to take Mexican American Studies classes instead of American history. Students were able to self-reflect on their cultural background, learn about Mexican American history, and think about what it means to be a Mexican American in this country. This program ultimately contributed to 100% of students graduating high school and 85% going to college, which shows that ethnic studies programs tremendously improve graduation rates, compared to the 85% national high school graduation rate (Public High School Graduation Rates 2020) and 69% college enrollment rate (Immediate College Enrollment Rate, 2020). Stanford University researchers (Anderson 2016) gathered data from three San Francisco high schools and found that students who participated in an ethnic studies program for four years had increased student attendance by 21%, grade-point average by 1.4 points, and credits toward graduation by 23 credits. Not only do ethnic studies help students appreciate their identity, but they also improve students’ academic achievement.

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To incorporate ethnic studies into a school curriculum, schools can partner with youth programs like A-VOYCE. Ethnic studies teachers should have an ethnic background related to the topic they are teaching so that they truly understand their curriculum and students, and can use their personal narratives to teach their students. Funds should go into educating teachers on the history and current events surrounding different ethnic groups. For example, an Asian American teacher can participate in something similar to A-VOYCE workshops to learn about Asian American history and identity. The teacher can then incorporate the A-VOYCE curriculum into their lesson plans. Ethnic studies should be introduced in elementary schools to encourage students to build awareness and confidence in their ethnicity. As students develop critical thinking skills in middle and high school, ethnic-related courses should help students reflect on their identity, learn about current issues, and think about what they can do to address those current issues. The demographics of BPS are 42% Hispanic, 33% Black, 14% White, and 9% Asian (Boston Public Schools at a Glance 2019). Therefore, schools need to provide ethnic studies programs for Hispanic, Black, and Asian students. If schools are able to teach American history from K-12, they should be offering ethnic studies as well. Before I got the chance to explore my identity, I knew that I held negative views on my own people, but did not know why because I never had the opportunity to reflect on that in school. Without ethnic studies in school, students of color might not be as engaged in the classroom as other students because the curriculum does not include them in the picture. Seeing their ethnic groups marginalized on the sidelines of history books can cause students to think that they are of less importance compared to other American students. The need for ethnic studies in K-12 is especially important right now as the pandemic is fueling xenophobia. We must provide ethnic studies courses as part of the school curriculum because it is important to teach students that they matter in this country.

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References Anderson, M. D. (2016, March 7). The Academic Benefits of Ethnic Studies. The Atlantic. https://www.theatlantic.com/education/archive/2016/03/the-ongoing-battle-over-ethnicstudies/472422/ BPS at a Glance 2019-20_FINAL.pdf. (n.d.). Retrieved November 22, 2020, from https://www.bostonpublicschools.org/cms/lib/MA01906464/Centricity/Domain/187/BPS%20at %20a%20Glance%202019-20_FINAL.pdf Precious Knowledge | Ethnic Studies in Arizona | Independent Lens | PBS. (n.d.). Independent Lens. Retrieved November 22, 2020, from https://www.pbs.org/independentlens/films/precious-knowledge/ The Condition of Education—Postsecondary Education—Postsecondary Students— Immediate College Enrollment Rate—Indicator April (2020). (2020, April). https://nces.ed.gov/programs/coe/indicator_cpa.asp The Condition of Education—Preprimary, Elementary, and Secondary Education—High School Completion—Public High School Graduation Rates—Indicator May (2020). (2020, May). https://nces.ed.gov/programs/coe/indicator_coi.asp Youth Programs. (2020). Asian Community Development Corporation. https://asiancdc.org/avoyce

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INCREASING THE REPRESENTATION OF LOW-INCOME HIGHACHIEVERS AT ELITE COLLEGES BY FATIMA DJALALOVA Low intergenerational mobility is an enduring problem in the United States. While the elite colleges are capable of boosting socioeconomic mobility, they do not prioritize recruitment of lowincome students. Despite the generous financial aid policies, low-income students remain massively underrepresented at the elite institutions. This phenomenon results from undermatching–– a situation when high-achieving low-income students are not matched with toptier schools that can best help them become successful in the future. Consequently, higher education that is capable of correcting the issues of intergenerational mobility exacerbates it instead. The policies of sending mailers (Hoxby and Turner 2013) or giving a 160-point SAT advantage (Chetty et al. 2020) would not be widely administered until the recruitment of lowincome students becomes the top priority of elite colleges. This paper identifies two policies that the government that wishes to correct the problem of undermatching can implement. The first policy is to change elite colleges’ incentives by adding mobility rankings to the US World and News Report and granting the federal aid based on that ranking. The second policy is to grant access to higher education to top students in all public high-schools and invest in the public institutions–– particularly those with high mobility rates. “We make a promise to every admitted student: your financial circumstances will not keep you from Harvard” (Harvard College, n.d.): the elite colleges position themselves as the drivers of social mobility by demonstrating their effort to make higher education accessible. But is it true that low-income is no longer a barrier to elite education? After all, low intergenerational mobility continues to be a persisting issue in the United States. Levy and Tyre (2018) explain that the problem is that: "In a group of 38 selective colleges, more students came from families in the top 1 percent of the income scale than from the entire bottom 60 percent." Many high-achieving lowincome students do not receive the elite education, unlike their high-income peers. The goal of this paper is to identify policies that will improve access to higher education for low-income students. The low-income students are dramatically underrepresented at the elite institutions. Figure 1 plots the share of students from different income groups at elite colleges in 2002 and 2013. It shows that in 2013, the elite colleges had more students from the top 1% than the bottom 40%. Moreover, according to the figure, the top 1% was the only income group that increased as a proportion of the student body over the decade. The other income groups saw a decline: for example, the proportion of students from the bottom 20% dropped from a paltry 4 % to 3.5%. This drop occurred in spite of the notable increase in the overall number of low-income college students. Figure 2–– which shows the change in the share of low-income students in higher education between 1996 and 2016–– illustrates that the proportion of low-income students in highereducation rose from 12% to 20%. Figure 2 also shows that this rise largely owes to the increase of low-income students in minimally selective schools (Fry and Cilluffo 2019). Hence, more lowincome students are receiving post-secondary education, but not at the elite colleges.

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The underrepresentation of low-income students at elite colleges exacerbates the issue of socioeconomic mobility. Matthews (2017) warns about the lost opportunity to improve equality because elite school graduates have more than a 50% chance to wind up in the top income quintile in comparison to a mere 2.9% chance for non-selective school graduates. To illustrate, Figure 3 plots the effect of college education on intergenerational mobility. The intergenerational mobility signals to what extent the incomes of students are pre-determined by their parents’. Figure 3 shows that elite colleges have the highest potential to increase intergenerational mobility because all their graduates, regardless of their family incomes, are likely to land in the top 30% income group (Chetty et al. 2017). The problem, as Chetty et al (2020) stress, is that elite colleges not only disuse their potential, but also further depress intergenerational mobility when they enroll too few lowincome students. It is often argued that most low-income students lack qualifications required by the elite institutions (US Department of Education, n.d.). The data put light on this claim. The proportion of low-income students at selective colleges is much smaller than the proportion of low-income high-achievers. Figure 4 shows the proportion of students with similar scores grouped by income who attend a selective college. Despite having the same scores, high-income students attend selective college at a rate 23.5% higher than their low-income peers (Education, n.d.). These data are consistent with Chetty et al’s (2020) findings that higher-income students are more likely to attend elite colleges at any test score levels. There are, however, two possible explanations for such income segregation in elite colleges: either elite colleges do not admit low-income students, or low-income students do not apply to elite colleges. The low proportion of low-income students in top-tier schools stems from low application rates rather than low admittance rates. Indeed, many of the high-achieving low-income students do not apply to elite schools. Figure 5 shows that high-income students are twice as common as low-income students among the high-achievers (Hoxby and Avery 2012). Nevertheless, Hoxby and Avery note that low-income students are 15 times less likely to apply than the high-income students. Over 40% of high-achieving low-income students choose to apply only to non-selective schools (See Figure 1 on p.7 in Hoxby and Turner 2013), and therefore end up attending a College that is less selective than they are qualified to attend–– i.e., they end up “undermatched”. Undermatching occurs because low-income students are unaware of or misinformed about their opportunities. Avery and Kane (2004) find that low-income students do not apply because they overestimate the cost, find the application process complex, or believe themselves to be unqualified to apply. Hoxby and Turner (2013) agree that expensive price-tags discourage students from applying because they do not know that the most selective colleges usually have the most generous financial aid policies. Moreover, Hoxby and Turner underscore that the fees associated with the standardized testing and complex paperwork present further barriers to applying. Most importantly, as Roderick et al (2008) highlight, these students come from communities with no tradition of college going, which means that they lack the encouragement, guidance and support to apply to colleges. As a result, low-income students rarely have help from family members or professional college counselors when it comes to applying to selective colleges. Consequently,

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many capable students do not apply to elite colleges and apply to feeder schools without examining all of their options (Roderick et al). Low-income high-achievers are uninformed because Colleges do not reach out to them. Avery and Hoxby (2012) explain that recruiting methods depend on student concentration and geographic proximity. Therefore, traditional recruitment methods would be costly and ineffective with the low-income students who are scattered around the country. The elite schools traditionally reach out through ACT or SAT mailers, college access programs, college counselors and college visits. ACT/SAT mailers rarely distinguish students by income, and therefore, do not include the specific information tailored for low-income students about fee waivers and available aid. College access programs rely on students coming to seek their help by themselves. College counselors that colleges maintain strong relationships with usually come from selective high-schools (Avery and Hoxby), but most low-income students attend high-schools with the average student-to-counselor ratio of 482 to 1 (Levy & Tyre, 2018). Each elite college is capable of visiting at most 100 out of 42000 US high-schools, and they usually select schools that are feeders or that have highconcentrations of students (Avery and Hoxby). Simply put, using traditional recruiting methods to reach all of the low-income high-achievers would be prohibitively costly. Undermatching due to a lack of awareness or savvy on the part of the low-income students is potentially remediable by appropriate actions by college admission offices. Two studies found cost-effective recruiting methods that increased low-income students’ likelihood to apply and enroll in elite colleges. In 2010, Hoxby and Turner (2013) sent mailers to low-income students and their parents that included application guidance, information about net costs and fee waivers. The students who received the mailers were twice as likely to apply and get enrolled than those who did not (See Figure 6 on p. 15 in Hoxby and Turner 2013). Each mailer cost $6, which is little in comparison to millions spent on recruitment and the significant returns to the economy brought by low-income students who graduate elite college. A similar and even less costly experiment was conducted by Oreopoulos and Dunn (2012) in disadvantaged schools in Toronto. A simple 3minute-video about the benefits of higher education and the presentation of the financial aid calculator increased the interest and willingness of low-income students to apply for postsecondary education. The success and the relative affordability of these ventures suggest that the low low-income student enrollment rates emanate from elite colleges’ reluctance to reach out, rather than elite colleges’ inability to reach out. In other words, it appears to be that elite colleges simply do not prioritize reaching out to low-income students. There is additional evidence to support that low-income students are not in the spotlight of elite colleges’ attention. Firstly, elite colleges place more weight on the recruitment of athletes and legacy students. Levy and Tyre (2018) highlight that legacy students have a 23% greater chance of being admitted. Similarly, Belasco (2019) notes that elite colleges are 20% more likely to admit athletes. To illustrate, 43% of Harvard's student body consists of athletes, legacies or children of the faculty (Caldera 2019). Both athletes and legacies usually come from wealthy families because legacy students are the children of the alumni, and athletes, as Desai (2018) notes, should have substantial financial support to afford professional coaching, equipment and traveling for

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tournaments. Secondly, many selective colleges use early admission policies that add further barriers for low-income students. Anderson (2016) finds that elite colleges recruit 40% of their students through the early-application system. Avery et al (2004) explain that many low-income students do not have the luxury of applying for the binding early decision because they need to compare their financial aid packages before choosing their college. Fallows (2001) concludes that the only beneficiaries of the early-admission advantage are the high-income students and the colleges that improve their yield ranking. In light of this diagnosis--that colleges do not prioritize enrollment of low-income students-governments that want to increase low-income students’ access to elite colleges may need to reconsider their policies regarding higher education. The elite colleges have not tried the Hoxby and Turner (2013) mailers so it is highly unlikely that they will accept Chetty et al’s (2020) proposal to give 160-point SAT advantage to low-income students that is said to improve representation of low-income students from 7.3% to 25.8% (Education, n.d.). Most of the elite institutions are private, so the government is not able to force them to change their policies. Nevertheless, the government has other options: it can change the incentives for elite colleges or improve access to public institutions. The first option is to change the elite colleges’ incentives. Elite colleges compete with each other in rankings that usually feature their admission and yield rates. While athletes and legacy students are important to develop the college culture, climb up in rankings and receive vast financial resources for amenities, it is important that elite colleges split the bonuses equally across different student groups. Therefore, the US World and News Report (2020) can start to rank colleges by their accessibility and mobility rates. Moreover, the government can stop providing federal grants to elite colleges with low mobility rates. Matthews (2017) highlights that no elite institution would make it into the top 10 if we sorted colleges by mobility rates. The mobility ranking would incentivize elite colleges to reserve more spaces for the low-income students, and prioritize outreach to high-achieving low-income students to ensure that they are getting the most qualified students. The second option is to improve the quality and to increase the access to public institutions. Most of the colleges on Matthews’ (2017) top 10 by mobility rate list are public, including Cal State, SUNY and University of Texas. Investing and providing more federal grants to these colleges can further help them to recruit more low-income students and develop their resources so that their mobility rates can rise further. Bleemer (2020) further highlights the effectiveness of the Eligibility in the Local Context program conducted by University of California. This program provided the top 4% of high school graduates with access to a selective college. The students, otherwise unqualified for admissions, enrolled in the selective college and moved up the income ladder by as much as $25000. It is important that the context of students was taken into account, because many capable students are unqualified because they could not afford to hire tutors to prepare for the standardized tests or edit their college essays. Hence, if the government expands this policy to all public institutions, more of the low-income high-achievers will get their ticket to the higher quantiles of the income ladder.

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The diagnosis that elite colleges do not prioritize low-income students in their recruitment policies has important implications for the government policies. Firstly, adding the mobility ranking to the US World and News Report and assigning federal grants according to it is likely to incentivize the elite colleges to place more weight on low-income student recruitment. Secondly, broad implementation of the Eligibility in the Local Context program and investment in public institutions–– especially those where mobility rates are already high–– can further increase the access and mobility rates of the public colleges. Only such policies can ensure that low-income high-achievers attend institutions that match their qualifications and can best help them to move up the income ladder. Of course, these policies are only a first step, as the larger issues that prevent low-income students from becoming high-achievers remain. The promise that “your financial circumstances will not keep you from Harvard” was made–– now it is time to keep it.

DIAGRAMS

Figure 1. The Income Levels of Students attending Elite Colleges. Generated using the data from “Some Colleges Have More Students From the Top 1 Percent Than the Bottom 60. Find Yours,” By G. Aisch, L. Buchanan, A. Cox and K. Quealy, 2017, January, 18, The New York Times. Retrieved December 20, 2020.

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Figure 2. Share of low-income students throughout higher education. Generated using the data from “A Rising Share of Undergraduates Are From Poor Families, Especially at Less Selective Colleges,” By R. Fry and A. Cilluffo, 2019, May, 22, Pew Research Center. Retrieved December 20, 2020.

Figure 3. The effect of college education on intergenerational mobility. Generated using the data from Figure III on p. 82 in “Mobility Report Cards: The Role of Colleges in Intergenerational Mobility (NBER Working Paper 23618),” By R. Chetty, J. Friedman, E. Saez, N. Turner, & D.Yagan, 2017, July, National Bureau of Economic Research. Retrieved December 20, 2020.

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Figure 4. Students at elite colleges organized by parental income level. Generated using the data from “Education,” n.d., Opportunity Insights. Retrieved December 20, 2020.

Figure 5. High-achieving students by parent income quartile. Generated using the data from “The Missing “One-Offs”: The Hidden Supply of High-Achieving, Low Income Students,” By C. Hoxby & C. Avery, Spring 2013, Brookings Papers on Economic Activity, p. 14.

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References Anderson, N. (2016, March 31). A college-admissions edge for the wealthy: Early decision. The Washington Post. Retrieved December 20, 2020, from https://www.washingtonpost.com/news/grade-point/wp/2016/03/31/a-college-admissionsedge-for-the-wealthy-early-decision/ Avery, C., Fairbanks, A., & Zeckhauser, R. (2004). The early admissions game: Joining the elite. Harvard University Press. Avery, C., & Kane, T. (2004). Student Perceptions of College Opportunities. The Boston COACH Program. National Bureau of Economic Research. https://www.nber.org/chapters/c10104 Belasco, A. (2019, January 1). Applying to Elite Colleges as an Athlete. College Transitions. Retrieved December 20, 2020. Bleemer, Z. (2020). Top Percent Policies and the Return to Postsecondary Selectivity. University of California. http://zacharybleemer.com/wp-content/uploads/2020/03/ELC_Paper.pdf Caldera, C. (2019, October 23). Legacy, Athlete, and Donor Preferences Disproportionately Benefit White Applicants, per Analysis. The Harvard Crimson. Retrieved December 20, 2020, from https://www.thecrimson.com/article/2019/10/23/nber-admissions-data/ Chetty, R., Friedman, J., Saez, E., Turner, N., & Yagan, D. (2017). Mobility Report Cards: The Role of Colleges in Intergenerational Mobility (NBER Working Paper 23618). Cambridge, MA: National Bureau of Economic Research. Chetty, R., Friedman, J., Saez, E., Turner, N., & Yagan, D. (2020). Income Segregation And Intergenerational Mobility Across Colleges in the United States. The Quarterly Journal of Economics, 135(3), 1567–1633. Desai, S. (2018, October 23). College Sports Are Affirmative Action for Rich White Students. The Atlantic. Retrieved December 20, 2020, from https://www.theatlantic.com/education/archive/2018/10/college-sports-benefits-whitestudents/573688/ Education. (n.d.). Opportunity Insights; Harvard University. Retrieved December 20, 2020, from https://opportunityinsights.org/education/ Fallows, J. (2001, September). The Early-Decision Racket. The Atlantic. Retrieved December 20, 2020. Fry, R., & Cilluffo, A. (2019, May 22). The total share of undergraduate college students who come from poor families increased from 12 percent in 1996 to 20 percent in 2016. Pew Research Center.

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Harvard College. (n.d.). Financial Aid. Retrieved December 20, 2020, from https://college.harvard.edu/financialaid#:~:text=We%20make%20a%20promise%20to,way%20of%20your%20Harvard%20edu cation. Hoxby, C., & Avery, C. (2013). The Missing “One-Offs”: The Hidden Supply of HighAchieving, Low Income Students. Brookings Papers on Economic Activity, 1-65. http://dx.doi.org.ezproxy.wellesley.edu/10.1353/eca.2013.0000. Hoxby, C., & Turner, S. (2013). Informing Students about Their College Options: A Proposal for Broadening the Expanding College Opportunities Project. Brookings. Levy, H., & Tyre, P. (2018, April 7). How to Level the College Playing Field. The New York Times. Retrieved December 20, 2020. Matthews, D. (2017, February 28). These colleges are better than Harvard at making poor kids rich. Vox. Retrieved December 20, 2020. Oreopoulos, P., & Dunn, R. (2013). Information and College Access: Evidence from a Randomized Field Experiment. The Scandinavian Journal of Economics , 115(1), 3–26. Retrieved December 21, 2020. Roderick, M., Nagaoka, J., Coca, V., & Moeller, E. (2008). From High School to the Future: Potholes on the Road to College. Case Studies [Research Report]. The University of Chicago. https://eric.ed.gov/?id=ED500519 Some Colleges Have More Students From the Top 1 Percent Than the Bottom 60. Find Yours. (2017, January 18). The New York Times. Retrieved December 20, 2020. US Department of Education. (n.d.). Low-income and Minority Students. Retrieved December 20, 2020. U.S. News Education Rankings. (2020). U.S. News & World Report. Retrieved December 20, 2020.

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THE THRESHOLD OF HUMANITARIAN INTERVENTION FOR RELIGIOUS PERSECUTION BY NECHAMA HUBA In the 1900s, more than 240 million civilians were killed by their governments for horrifying reasons including their religion, economic status, and race (Bandow 1995). Two of the most gruesome incidents included the Holocaust and the Rwandan Genocide, which were acts of religious persecution and a blatant disregard for basic human rights. Despite this startling number, so far the 2000s show no clear signs of stopping this trend. From the ongoing Uyghur crisis in China to the persecution of the Rohingya in Myanmar, it is clear that our current society does not stray far from the dark history of the past. In fact, as violence becomes normalized, citizens and governments all over the world become numb to persecution and genocide which further perpetrate a cycle of violence. The role of the government within these killings lies foremost in recognizing the inalienable rights of the victims. Within the International Bill of Human Rights, the freedom of religion is one of the clearest. Article II of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities proclaims that “persons belonging to national or ethnic, religious and linguistic minorities… have the right to enjoy their own culture, to profess and practice their own religion… without interference or any form of discrimination” (OHCHR 1948). The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as the “crime of destruction of minorities”, with religious groups being one of the main categories for discrimination (OHCHR 1952). While the right for freedom of religion is clearly stated, its legitimacy is directly challenged each time a government uses religion as a means of bias. The ICISS Report of “The Responsibility to Protect” (R2P) specifies that the international community must intervene if there is any “large scale loss of life” or “large scale ‘ethnic cleansing’” (United Nations Office on Genocide Prevention and the Responsibility to Protect, sec. 4.19). All of the countries that sign the International Bill of Human Rights agree to the R2P and to intervene if any of the rights are not upheld. Humanitarian intervention has long been viewed as a controversial political move. While humanitarian aid is normally more peaceful of an approach, humanitarian intervention is specifically defined as “the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied” (Barsa, 6). The defense behind humanitarian intervention is that in looking at genocides and religious persecution, specific force often has to be applied once the crisis has hit “no point of return” without outside help. While humanitarian intervention is often debated among scholars, this paper operates under the assumption that when necessary, governments should prioritize force in order to save lives. As Joseph Stalin famously wrote, “one death is a tragedy; a million is a statistic” (Washington Post 1947). Because of the drastic nature of government-sanctioned killings as a

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whole, this paper aims to uncover the nuances surrounding religious persecution and the role of the international community in intervening. The research question motivating this paper is: When and how do states decide to intervene against religious persecution? What is their motivation for doing so? In order to tackle this question, this paper looks at four main case studies (the Greek War, the Holocaust, the Rwandan Genocide, and the Uyghur Persecution) to examine the cause for a lack of intervention in the first place and the overall trends of why intervention eventually occurred. These case studies were chosen over a variety of variables including regions, time period, and scale in order to allow for generalization when answering the question fully. Through this question, I hope to clarify the perspective of governments in order to offer conclusions to the international community on methods to intervene. The first perspective in considering when governments should intervene is realism. Realists would contend that the threshold of intervention lies within unitary states or leaders. Specifically, intervention itself would depend on the self-interest of the state getting involved, and the threshold would be based on the state rather than on the type of violence surrounding the victims. Realists would also contend that when the actor is getting involved, they have just cause for war (just war theory). Among the notable research surrounding this issue is done by Kuperman (2020) who examined the threshold of intervention during the Rwandan Genocide and concluded that governments have become normalized to violence of massive proportions and therefore are raising their thresholds for intervention (Kuperman, 104). Additionally, Huag (2020) underscores the realist perspective of just war theory in reference to intervention. In other words, when a country decides to intervene (through self-interest), aggression and the “means to an end” are properly constituted. This implies that in deciding whether humanitarian intervention does more harm than good, arguing that if it is in a state’s (and presumably, the victims’) best interest, then the state should intervene. Overall, however, realists would contend that governments intervene according to their country’s agenda, rather than simply for the sake of protecting the people being persecuted. Liberal institutionalists, on the other hand, would look towards the laws that already exist that allow for intervention, including the human rights norms of doing so. They argue that international organizations should increase their role in intervention against religious persecution, which would consequently increase government participation in ending it. The threshold for intervention would then depend on the pre-existing precedent for intervention and the ethical laws that the perpetrator is breaking. Among existing literature for the school of thought, Harff (2003) tries to predict the “risk factors” for a genocide in a country. He finds that countries with previous political upheaval, the authorities’ articulation of an exclusionary ideology, autocratic regimes, and trade isolation were key indicators of these “risk factors” (Harff 61-63). By indicating these risk factors, many of which require an international institution to correct at an early stage, Harff hopes to encourage international organizations in promoting democracy, freedom of religion, and trade openness. Identifying risk factors is an important step, but Harff argues that international institutions should intervene much earlier, especially considering the precedents that already exist. Finally, constructivists would argue that actors are more likely to intervene when religious persecution has some tie to the government’s identity, whether that be race, ethnicity, religion, or

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government type. Therefore, the threshold of intervention would depend on the victims, the reason for the persecution, and whether the intervening actor has a collective identity with the victims. In a study examining why countries intervene in genocides from psychological and social angles, Mazur and Vollhardt (2015) find that intervention is most likely to occur when there are published “central features” of a genocide (the generalizable characteristics of power struggle, discrimination, etc.), rather than peripheral features (features specific to one country’s genocide). Additionally, the means of intervention depends on the violence of the genocide, not the severity of it. In other words, a country might be more likely to intervene depending on the discrimination of the victims, suggesting that the decision to intervene is subjective based on its collective identity. In looking at the four case studies, the Greek War of Independence (1821-1829) documents the first case of armed humanitarian intervention to occur by outside forces. The Greek War occurred because Greek Orthodox Christians were being discriminated against by Greek Muslims and the Ottoman Empire (Heraclides and Dialla 2015). While the international community was aware of this persecution, the war lasted for almost eight years due to little intervention. The lack of intervention stems from the fact that France and Germany had no interest or precedent in intervening in the region or in crises that weren’t wars. Because humanitarian intervention was so unprecedented, the British, French, and Russian governments had to be explicitly convinced why intervention was so necessary, which delayed action. This points to the liberal institutionalist argument that intervention is needed through humanitarian organizations so that the cost of transaction is significantly reduced (Heraclides and Dialla 2015). Finally, through mediation attempts, naval fleets, and interventions by these three additional powers, the war ended. This war highlights the fact that intervention did not occur through a mix of reasons. Broadly, the other powers felt no need to intervene which jointly stemmed from a lack of precedent, a lack of collective identity towards the Orthodox Christian community and Mediterranean, and a lack of motivation for achieving some political agenda in their country. The focus was on what was best for the countries intervening, rather than the Greek victims. The Holocaust, one of the most well-known acts of blatant religious persecution, is a chilling reminder of what happens when countries raise their threshold of intervention. To begin, the United States initially only entered the war because of the bombing of Pearl Harbor (1941) due to government fears of over-involvement. Self-interest, or the realist agenda, drove the United States to avoid intervention in the first place, and their decision to intervene stemmed from their own political agenda and fear of being disregarded as a global superpower (The Holocaust: World Response, 2020). The lack of intervention occurred in threefold. First, the Allied Powers were too concerned with winning the war, rather than the victims being harmed by the war, which led to tunnel vision in prioritizing battle over direct intervention. Additionally, there was general disbelief and denial from the Allied Powers in that the astronomical numbers must have been fabricated. Finally, while the world had an inclination of what was happening in the region, citizens (specifically Americans) failed to pressure their governments to take collective action, due to the fact that they felt little allegiance to Jews in Europe. Unfortunately, the religion of the victims dissuaded the governments from intervening, directly supporting the constructivist argument. The

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end of the war was demarcated by military, navy, and air force intervention that involved atomic bombs. One of the deadliest events in all of history, the Holocaust, is unique in that it spurred the creation of what many people consider to be the popularization of international institutions. The international community adopted a liberal institutionalist approach when it realized that specific standards for human rights, which were implied before, could no longer operate under the honor rule. Now, international institutions would be put in place to spell out these rights, as well as enforce them. The lack of efficacy in the Allied Powers, too, showed that even when countries share the same ideals surrounding rights, global governance needs to ensure that the focus lies on intervening to protect the victims, rather than to win a war. This underscores the importance of an international institution and proves that without one, countries might be tempted to pursue their realist goals. The Rwandan Genocide (1994) was short, but one of the most fatal in all of Africa’s history. This genocide is included in this research as religious persecution because when Belgium colonized Rwanda, they ruled through the church. Only through this colonization were the Hutu, the crow-growing majority, and the Tutsi, the livestock minority, separated into classes (Kuperman 2020). These classes, which were demarcated by profession and dedication to the church, sparked the initial Hutu violence against the Tutsi. However, the international community struggled to intervene, despite more international institutions being founded. While the international community had ample resources to intervene, one of the main reasons for the lack of intervention was the “shadow of Somalia”. In other words, because other regional actors wanted to keep amicable policy relations with military-powerful Somalia, they refused to intervene for fear of retaliation. Notably, the United States never tried to intervene, specifically due to a lack of stakes and identity (through internalized racism) with the African nation. Finally, a lack of internal pressure in Rwanda itself slowed the action. The United Nations Assistance Mission for Rwanda (UNAMIR) tried to intervene but was widely criticized for giving too little, providing inadequate aid, and not listening to the needs of the local community (Maritz 2014). The war only finally ended because of an uprising from the Rwandan Patriotic Front (RPF), which was backed by the sole actor of Uganda. This case has often been studied as a time in which international institutions and constructivist identity directly harmed Tutsi lives. Through this case analysis, not only were international institutions exposed to their flaws, but what once could have been beneficial action by these institutions was undermined by powerful countries like the United States not stepping in and providing additional support. This offers nuance to the liberal institutions’ hypothesis in that while the threshold for intervention often does rely on past precedent, governments also cannot intervene reasonably and effectively if they don’t have enough global support and resources. The final case study is the current persecution of the Uyghur People, a group of Muslims that reside in the region of Xinjiang, China. While there has been military occupation in the region since 1949, an official campaign by China’s Communist Party has started since May 2014 (Maizland, 3). This campaign, which China frames as a way of ridding their country of terrorism, is truly systemic discrimination and persecution. A current lack of intervention is a result of Chinese information suppression about the extent of the persecution and support from other

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countries about the “eradication of terrorism”. Notably, this “support” stems from 45 countries, which is appallingly high (Putz 2020). In addition, most of this support stems from Muslim countries (Egypt, Saudi Arabia, the United Arab Emirates, Syria, Iran, Iraq and Yemen, among others), which in theory have a bond of identity that should lead to intervention, as the constructivist hypothesis proposes. Instead, however, the realist ideals of these countries in wanting China’s global power on their side have hindered their ability to properly intervene and protect the Uyghur people. While there has been a signatory of 22 countries condemning the persecution, there are notably more countries supporting the persecution, which not only shows the need for international institutions to spearhead the effort in stopping acts of religious violence, but also serves as a warning for the international community that inaction truly costs lives. The realist ideals of these Muslim countries were put ahead of a potential means to intervene through shared identity, which point to how international institutions need to step in further to ensure intervention at all. The following chart summarizes the four case studies and helps to show trends among the reasons for a lack of intervention, showing which parts of the hypotheses ring true. Name

Date

Issue

Lack of Intervention?

Intervention

Greek War

18211829

Holocaust

19391945

Greeks pushed from Lack of threat to Mediation attempts, native land and immediate security or naval fleets, & killed by Ottomans essential interest assistance by Britain, France, and Russia Persecution of Focus on winning war, Military, public verbal Jewish people by disbelief, lack of support, monetary aid German common identity government

Rwandan Genocide

1994

Uyghur Persecution

2014 - Violence towards Chinese information Letter-writing; and occupation of suppression; outside proposed sanctions Turkic people by support CCP

Hutu violence Somali politics, lack of UNAMIR, against Tutsi media coverage, low military aid because of ethnic $ incentive to interfere differences

Ugandan

As shown by the chart and the summaries of the case study, there is no clear-cut way in looking at the threshold for intervention in religious persecution. Constructivists would argue that the threshold for intervention depends on some collective identity with the victims. While the inaction in the Greek War, Holocaust, and Rwandan Genocide all directly correlate to a lack of empathetic connection with the victims, the Uyghur Persecution shows that even in the eye of a collective religion, countries often prioritize their realist ideals. Furthermore, when the

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constructivist argument does hold true in the case of the first three case studies, it is often masked by countries as a matter of self-interest or the realist approach to not intervene, in an attempt to seem less discriminatory. Due to the inherent nature of this research in religious intervention, the majority of intervention and the lack thereof stems from collective identity, echoing the sentiment of the constructivist ideals. However, as the complete picture of these case studies reveals, a lack of identity might prevent a country from helping the victims of a genocide, but even when a collective identity exists, intervention is not guaranteed if there are no underlying benefits for the countries involved. Realists hypothesize that the threshold of intervention lies within unitary states or leaders and is dependent on self-interest. These case studies show how intrinsically linked realism and constructivism are to one another–– intervening in persecution stemming from a country with a different identity could turn the domestic political climate against the government, which would then make intervening against their self-interest. Cases like these, which were echoed in the Holocaust and the lack of intervention in the Rwandan Genocide, underscore the importance of governments putting their needs aside. Unfortunately, however, as these cases show time and time again through cycles of violence, governments rarely do so. In these studies, both the constructivist and realist perspectives of intervention seem to hold true, and with caveats, are dependent both on the case and the level of intervention needed. However, embedded in all of the constructivist reasons to not intervene, are realist reasons as well. These interwoven ideas are seen through the Holocaust, in which the United States did not intervene because of a lack of shared religion with the persecuted Jews but also for self-interest of remaining neutral. All of the cases, as well as the explanation for the realist and constructivist hypotheses, show why liberal institutionalism is important. Liberal institutionalists look towards the laws that already exist that allow for intervention, including the human rights norms of doing so. After the Greek War and the Holocaust, the international community scrambled to create laws and norms for intervention in the first place, like the International Bill of Rights and the R2P. Once these existing laws were established, the international community tried to increase their role in intervention against religious persecution. While this falls in line with the liberal institutionalist claim, the examples of both failed attempts of intervention in the Rwandan Genocide and the failure of the United Nations to get more than 22 countries to condemn Uyghur persecution show that while the international community might have taken a larger role, it was not necessarily effective nor beneficial. This was seen in the Rwandan Genocide. Yet again, too much trust was placed in international institutions rather than individual governments intervening as aggressively as possible. Additionally, while countries might lean on liberal institutionalism as a way of dictating their threshold, too much stagnation in definition and bureaucracy limits their effectiveness, especially as unprecedented forms of persecution are cropping up each day. In many ways, this research serves as a starting point in educating the general public and government about the holes and fallacies within religious persecution. Governments are left to their own devices to figure out whether to intervene, but often turn to realist or constructivist reasons as a way to justify inaction. When the international community does step in and

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governments use existing precedent however, like the liberal institutional hypothesis, more harm is often done. The goal of this research was to pinpoint a threshold of when governments decide to intervene so that the international community may work on lowering this threshold to be more proactive in situations of wrongful killings. While the thresholds certainly vary and cannot be pinpointed, being acutely aware of possible outcomes in which a government may shirk the R2P allows citizens to hold their governments responsible. Regardless of the justification for lack of intervention, governments all over the world must work to uniformly lower the threshold of intervention. Only then will we be able to break out of the cycle of religious persecution and unjust genocide.

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References Abiew, F. K. (1999). The evolution of the doctrine and practice of humanitarian intervention. The Hague: Kluwer Law International. Bandow, D. (1995, July 01). Death By Government: Doug Bandow, R.J. Rummel. Retrieved December 14, 2020, from https://fee.org/articles/death-by-government/ BARŠA, P. (2005). Waging War in the Name of Human Rights? Fourteen Theses about Humanitarian Intervention. Perspectives, (24), 5-20. Retrieved December 14, 2020, from http://www.jstor.org/stable/23616042 Blitz, Brad. “Another Story: What Public Opinion Data Tell Us about Refugee and Humanitarian Policy.” Journal on Migration and Human Security 5, no. 2 (June 1, 2017): 379– 400. https://doi.org/10.1177/233150241700500208. Evans, Gareth. “The Responsibility to Protect: An Idea Whose Time Has Come … and Gone?” International Relations 22, no. 3 (September 1, 2008): 283–98. https://doi.org/10.1177/0047117808094173. Harff, B. (2003). No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955. The American Political Science Review, 97(1), 5773. Retrieved November 20, 2020, from http://www.jstor.org/stable/3118221 Harstin, Murry. “Intervention to Prevent Religious Persecution in International Law.” St. John's Law Review , vol. 1, no. 2, ser. 1, Dec. 1926, pp. 30–46. 1, https://scholarship.law.stjohns.edu/lawreview/vol1/iss1/2/. Heraclides, A., & Dialla, A. (2015). Intervention in the Greek War of Independence, 1821–32. In Humanitarian Intervention in the Long Nineteenth Century: Setting the Precedent (pp. 105-133). Manchester: Manchester University Press. doi:10.2307/j.ctt1mf71b8.11 Hudayar, Salih. “WHEN HUMAN RIGHTS, NATIONAL IDENTITY, ETHNICITY, AND RELIGIOUS PERSECUTION COLLIDE.” Sur: International Journal on Human Rights 16, no. 29 (August 1, 2019): 179–182. https://search-proquestcom.ezproxy.wellesley.edu/docview/2384193623?accountid=14953&pq-origsite=summon “Hungary Intervention on the 2019 Ministerial To Advance Religious Freedom - United States Department of State.” U.S. Department of State, U.S. Department of State, 11 Mar. 2020, www.state.gov/hungary-intervention-on-the-2019-ministerial-to-advance-religious-freedom/. Kuperman, A. (2001). Lessons. In The Limits of Humanitarian Intervention: Genocide in Rwanda (pp. 109-119). Washington, D.C.: Brookings Institution Press. Retrieved November 20, 2020, from http://www.jstor.org/stable/10.7864/j.ctt127xzj.14

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The Holocaust: World Response. (n.d.). Retrieved December 14, 2020, from https://www.jewishvirtuallibrary.org/world-response-to-the-holocaust Maizland, L. (2014). China's Repression of Uighurs in Xinjiang. Retrieved December 14, 2020, from https://www.cfr.org/backgrounder/chinas-repression-uighurs-xinjiang Maritz, D. (2012, April 12). Rwandan Genocide: Failure of the International Community? Retrieved December 14, 2020, from https://www.e-ir.info/2012/04/07/rwandangenocide-failure-of-the-international-community/ Mazur, L. B., & Vollhardt, J. R. (2015). The Prototypicality of Genocide: Implications for International Intervention. Analyses of Social Issues and Public Policy, 16(1). doi:https://doi.org/10.1111/asap.12099 Prevention and Punishment of the Crime of Genocide. (n.d.). Retrieved December14, 2020, from https://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx Putz, C. (2020, October 09). 2020 Edition: Which Countries Are For or Against China's Xinjiang Policies? Retrieved December 14, 2020, from https://thediplomat.com/2020/10/2020edition-which-countries-are-for-or-against-chinas-xinjiang-policies/ U. (2010). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Retrieved 2020, from https://www.ohchr.org/Documents/Issues/Minorities/Booklet_Minorities_English.pdf United Nations Office on Genocide Prevention and the Responsibility to Protect. (n.d.). Retrieved December 14, 2020, from https://www.un.org/en/genocideprevention/prevention.shtml Universal Declaration of Human Rights. (n.d.). Retrieved December 14, 2020, from https://www.un.org/en/universal-declaration-human-rights/ Waldman, P. (2020, September 21). Opinion | Even Republicans don't buy Trump's spin on the pandemic. Retrieved December 14, 2020, from https://www.washingtonpost.com/opinions/2020/09/21/even-republicans-dont-buy-trumps-spinpandemic/

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THE RIGHT TO PROTEST: THE LEGACY OF TINKER ET AL. V. DES MOINES BY CARRINGTON PARKS The Tinker et al. v. Des Moines Independent Community School District (DMICSD) case is about a student’s right to “‘political expression’ asserted [via the] right to wear black armbands during school hours and at classes in order to demonstrate to other students that petitioners were mourning because of the death of United States soldiers in Vietnam and to protest that war [itself]” (Tinker v. Des Moine 516). Tinker’s side argued that the school officials’ ban on protesting the Vietnam War with armbands was encroaching on their First and Fourteenth Amendment rights. DMICSD claimed that they were acting in good faith; they were concerned the protest would disrupt the school day. The Supreme Court reversed the Eighth Circuit Court’s decision. Tinker et al. had the right to protest while on school grounds and that the DMICSD’s decision to ban armbands violated the 1 and 14 Amendment rights. Although this case was decided over 50 years ago, the sentiments expressed by Tinker and the majority opinion still apply to protest limitations enforced in high schools today. Now more than ever, schools should abide by the Tinker et al. v. DMICSD decision. Justice Fortas states in the case’s majority opinion that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moine 506). This belief has been established and upheld in many cases such as Meyer v. Nebraska. Within the last five to ten years, young adults have just begun to tackle –or at least acknowledge– some of the deeply rooted injustices that have plagued our country since it’s foundation. The liberties formed in Tinker et. al v. DMICSD allow children to appropriately express their opinion while in school. The Tinker case also drew strong congruities between Tinker et. al.’s, “… symbolic act, [which] is within the Free Speech Clause of the First Amendment,” and how “closely akin [it is] to 'pure speech' which, we [the Supreme Court] have repeatedly held, is entitled to comprehensive protection under the First Amendment,” (505-506). Even though the meaning of symbolic and pure speech has evolved over the last five decades, Tinker et. al v. DMICSD defined that both are to be protected by the First Amendment, even during class. Lastly, the Tinker case is monumental because it clearly defines whether a student protest would be suitable on school grounds. If the protest “…would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’” then students cannot host such disruption(s) to the school day (Tinker et. al 509). This is one of the most crucial aspects of the case because this statement eliminates ostentatious scholars who, as Justice Black so eloquently describes, are the “… loudest-mouthed, but maybe not [the] brightest” (Tinker v. Des Moine 525). Because of the clear specifications outlined in Tinker et. al v. DMICSD, student protests since the 1960’s have been early identified and permitted on school grounds. Despite the stunning arguments in favor of Tinker et. al., Justice Black and Justice Harlow offer opposing opinions on this case. J. Black alleges that the majority’s main argument utilizes what he calls the “‘reasonableness-due-process-McReynolds’ constitutional test” (521). This is a st

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false claim for many reasons. The main reason is that the mere use of the word ‘reasonable’ does not constitute the resurrection of an era. J. Black offers no true explanation or evidence to support this outrageous claim other than one quote from Justice Fortas’ majority opinion. Justice Black also bases the bulk of his argument on non-sequiturs, irrelevant cases, and digressions. For example, he begins with a self-evident statement, but quickly switches to a case that barely connects to Tinker et. al v. DMICSD. From there, J. Black hurriedly transitions to a platitude with a lack of purpose, just to finish on another bromide that fails to tie in the aforementioned case or enlighten the reader since before the deviation occurred. While J. Black fumbled for a valid stance, Justice Harlow vehemently disagreed with the core issue of the Tinker case; he believed that school officials had complete jurisdiction in whether students can host protests. While J. Harlow makes a sound point, it is simply not feasible. Students are often protesting a view that school officials oppose. There is also the possibility of students protesting against officials themselves, which would cause an obvious conflict of interest. While Justice Harlow and Black make wellintentioned objections to the majority opinion of Tinker et. al v. DMICSD, many of their objections fell flat compared to the facts and reasoning of the majority opinion. In conclusion, notwithstanding protests, Tinker et. al v. DMICSD created a solid foundation on which students have the freedom to protest with limitations. As long as their protests do not interrupt the school day, students can express their opinions within the classroom. Young adults are permitted to support the environment, protest police brutality, or discourage sexual harassment among one another. While some may object to this right, they must recognize the situation of most students. These are children who are unable to vote but are expected to be politically active in the future. While the amount of civic engagement varies for each person, everyone is expected to vote. Allowing students to protest maintains their passion to shape our democracy while keeping them in a safe, controlled environment rather than a potentially dangerous setting. Schools were made for learning. Although a significant amount of learning comes from a textbook, one of the best ways to learn is by shaping history yourself.

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References Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

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RELIGIOUS TOLERANCE IN THE LAW: THE USAGE OF SHARIA’A LAW IN U.S. COURTS BY CLARA SHANABROOK Law and religion are built around a code of equality, human rights, and tolerance. Both carry enormous power in dictating community responses to these values and frequently both fail to uphold these standards. In Islam, law and religion are physically connected in Shari’a law, a primarily legal and secondarily social organization of practices and expectations based in the Qura’n and Hadith. A recent movement towards banning Shari’a law from American Court systems has achieved traction in a number of states with 201 anti-Shari’a law bills being introduced in 43 states between 2010-2018 (Shanmugasundaram 2018). At first glance this pushback seems reasonable; there is no place for religious law in the courtroom of a secular liberal democracy. However, a deeper study of Shari’a law, comity, and the interaction between the two, reveals that treatment of Shari’a law as different than any other foreign nation’s law not only lacks a legal backing but is harmful to domestic and international tolerance. In the following pages I will present arguments made by anti-Shari’a organizations for the banning of Shari’a law from American courtrooms, namely, that Shari’a law is contrary to the human rights standard of the United States and that Shari’a law, as religious law, should not be recognized in a secular courtroom. To these I will give a dual critique, first rebutting these arguments individually, and second, arguing that even if the validity of anti-Shari’a arguments is assumed, these arguments would not have the impact feared. Using court cases I will illustrate that, in practice, Shari’a law does not prove a threat to American law or rights. Finally, I will argue that since a blind ban of Shari’a law is in opposition to the American law and legal system, it sends a message to the general public that Islamic law is antithetical to American values and a message to Muslim communities that they are unwelcome here. Discrimination towards Shari’a law in American courtrooms has increased significantly over the last decade, led by predominently right wing organizations and activists with legal and homeland security focuses. They have a dual argument, that Shari’a law is contrary to the human rights standard of the United States and should therefore not be recognized in its courtrooms and, more broadly, that religious law should not be recognized by the United States. If Shari’a law is recognized in U.S. courtrooms, they claim, it will be a threat to American freedom and democracy. Purporting this, they have been successful in turning misinformed fear mongering rhetoric into state legislation. The panic surrounding the presence of Shari’a law can be attributed to a widespread lack of understanding or misunderstanding of Shari’a as a concept and practice. Conceptually, Shari’a is concerned with the observance of the five pillars of Islam: belief in God, ritual prayers, fasting, the hajj (pilgrimage), and charity. Directly interpreted, shari’ah means “the way”, the path of religious rituals and day to day life which Muslims are to follow. As a legal doctrine, Shari’a law is formed from Islam’s two key sources, the Qur’an, the holy book of Islam understood to be the word of God, and the sunna, a biography of the Prophet Mohammed. From the sunna is derived

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the hadith, direct teachings of the Prophet. These texts are understood to be infallible and immutable but as Shari’a law is applied through ijtihad (interpretation of holy sources) by ulama (Islamic jurists) and implemented through fatwa (the rulings of jurists), fiqh (the application of Shari’a law) is fallible and changeable. This distinction is critical to responding to critiques of Shari’a law. While Shari’a is the divine law of God, the rules derived from it and applied in the courtroom are human creations. This is instrumental to the epistemology of fiqh itself: “because no fiqh rule can conclusively claim to be “the” correct understanding of Sharia, no fiqh rule is—in and of itself—binding on any Muslim” (Quraishi-Landes, 252). Additionally this clarification responds to “offensive” fiqh rules frequently cited by anti-Shari’a activists: “Quoting one (or even more than one) fiqh rule does not define Sharia any more than quoting Plessy v. Ferguson defines the U.S. Constitution” (QuraishiLandes, 252). While it is clear that Shari’a is not as monolithic or inflexible as it is frequently understood to be, the opinion that Shari’a law in America is harmful, particularly to women, still resonates with many. Quraishi-Landes emphasizes, “This is important because few Americans have any appreciation for either how Shari’a might be seen as a positive force in Muslim lives, or what a Shari’a ban could mean for American Muslims” (Quraishi-Landes, 252). The broader interpretation of Shari’a law as inherently anti-feminist is as incorrect in practice as it is in theory. Indeed, Shari’a Courts, used predominantly by women, can be seen as integral to the access of their rights. Studying the application of Shari’a in Ottoman Courts, Leslie Peirce remarks that women’s appeal to Shari’a courts can be seen as “an act of agency that establishes a dialogue with the community through the auspices of the court” (Peirce, 373-374). Additionally, there are certain Shari’a laws which benefit women to a greater extent than does American law. For example, in American divorce procedures, a woman’s property can be split with her husband. In Shari’a law, a woman’s property is exclusively her own, it is protected by law from both her father and husband. This is not to say that Shari’a law is without discriminatory and unequal practices, but that the assumption of Shari’a law as monolithic and offensive to American standards of gender equality is inaccurate; in fact, many “Muslim women might object to the wholesale judicial disregard of Shari’a as an intrusion upon their rights” (Quraishi-Landes, 254). Examination of the second argument of anti-Shari’a proponents, that religious law should not be permitted in secular courtrooms, reveals a fundamental misunderstanding of the application and constitutionality of the role of religious law in American courts. While the United States legal system is secular and forbids the use of religious law as binding legal authority, religious law may apply to certain legal scenarios. For example, “parties to private agreements or civil transactions (e.g., contracts, arbitration agreements, domestic relations agreements or settlements) may provide that religious law would apply to the terms of the agreement or in the case of a dispute or breach of the agreement” (Brougher, 1). The balancing of religious based legal requests with secular law is a necessary component of American law. This has been effectively accomplished with constitutional and legislative practices such as comity and public policy. These established

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practices have been used to adjudicate the religious laws of American Catholics, Native Americans, Jews, Mormons and others for two centuries. The use of religious law is not unconstitutional but the ban of religious law is. In 2010 the definitive approval of an Oklahoma state constitutional amendment which prohibited the use of Shari’a law in state courts was legally challenged to determine whether the amendment complied with the First Amendment of the U.S. Constitution (Brougher, 1). Within the First Amendment the Establishment Clause prohibits government preference among religions or between religious and nonreligious groups or individuals. Additionally, the Free Exercise Clause forbids the government from burdening group or individual ability to practice religious beliefs. Any bill which specifically bans Shari’a law can be viewed as government disapproval of Islam and government impingment upon Muslims’ right to practice freely, both of which are in violation of the First Amendement. While it has been demonstrated that the primary arguments for Shari’a law bans are unfactual, it is worth recognizing that even if this were not the case, the fears behind them would not be actualized. Arguments that Shari’a presence will permeate U.S. law and create unfair rulings are unfounded, due to circumvention by the U.S. treatment of religious and international law. The United States has a two hundred year tradition of granting comity to religious and international rulings. Comity is the process by which U.S. courts accept the ruling of another court without a retrial, relinquishing jurisdiction over the case. This is done for the purpose of convenience but also for diplomacy, the underlying notion of comity being “that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect” (“Comity” 2020). Comity should not be understood as a blanket legal obligation but rather as a case by case ruling which meets the standards and procedures of comity. When applied to international religious laws, comity standards establish that the case must meet public policy standards of the U.S. state where comity is granted and the religious law must be secular as well as religious in the country where the ruling was delivered. In application, this means if a divorce is granted by Islamic law but the divorce does not comport with state law or the country of origin does not recognize Shari’a law, the divorce will not be considered legal. Therefore, if Shari’a law was purely religious or was contrary to human rights, it would not be granted recognition by U.S. courts. The standards of comity protect against the fears, however inaccurate, of anti-Shari’a organizations, however this is only true if these standards are followed. The following court cases demonstrate the actualized treatment of Shari’a law in United States courtrooms. The first criteria of comity, the comportment of public policy, assures that the United States will not grant comity to rulings which fail to meet the established human rights standards of the state. This is illustrated in Aleem v. Aleem (Aleem v. Aleem, 947, 2008), a case in which Farah Aleem, the wife, filed for divorce in the Circuit Court for Montgomery County, Maryland. During these proceedings her husband, Irfan Aleem, a Muslim and Pakistani citizen, went to the Pakistani Embassy and preformed talaq. Talaq is one of three divorces recognized by Shari’a law and allows the husband to dissolve a marriage independently by repeating “I divorce thee” three times. Irfan claimed that the performance of talaq, under both religious and secular Pakistani law, deprived the Court of jurisdiction to divide the parties’ assets. The Maryland Court disagreed.

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The court claimed jurisdiction, refusing to grant comity to the performance of talaq as it was only available to men and therefore was a form of sex discrimination. By this discrimination talaq was incompatible with the public policy of the State of Maryland, specifically the Equal Rights Amendment. Beyond the talaq, the court ruled that it would not grant comity based on Pakistani divorce procedures depriving women of the due process they are entitled to when divorcing in Maryland. They concluded, “the ‘default’ under Pakistani law is that Wife has no rights to property titled in Husband's name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband's name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy” (Aleem v. Aleem, 2). This standard was upheld in Tarikonda v. Pinjari, a 2009 divorce case in which the court concluded, “to accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan’s laws” (Tarikonda v. Pinjari, 2009, 4). The second criteria of comity, that the ruling must be secular as well as religious is illustrated through Falah v Falah (Falah v. Falah, 1-22). In this case husband and wife were from Israel but held residency in Ohio. The husband filed for divorce in Israel at Shari’a Court, which was granted due to irreconcilable discord and dispute. The Shari’a Court decision ordered the husband to pay his wife her deferred dowry registered in the marriage contract which he subsequently did. In deriving a ruling the Ohio court looked to the Shari’a Court’s establishment but entered an independent judgement, granting the wife divorce and additionally finding the dowry payment to be a form of spousal support. The court determined that this did not prohibit further payments and applied the factors set forth in R.C. 3105.18(C)(1) to determine whether an additional award of spousal support was appropriate. The husband appealed, arguing that since the Ohio court had granted comity to a divorce obtained in Israel under Shari’a law that it should have dismissed matters of spousal support, asset distribution, and debt division as outside of its jurisdiction. The Ohio court disagreed (Falah v. Falah, 1-22). The court of appeals affirmed the ruling of the Ohio court, arguing that while the Ohio court used the religious divorce granted by Shari’a law as additional evidence, it did not grant it comity, instead granting a decree of divorce and setting forth orders for the division of their assets and the allocation of their debt. The court did not grant comity because “it is entirely unclear from the record what legal effect, if any, the Sharia Court decision has (in Israel)” (Falah v. Falah, 10). This impression was largely derived from the testimonies of both husband and wife who described Shari’a law in Israel as being exclusively religious. Notably, the court of appeals wrote that “had the court actually given comity to the Sharia Court’s decision, its decision would have been in error” (Falah v. Falah 10). According to this Ohio decision, although religious divorce may be entered as evidence in secular divorce hearings, a purely religious divorce cannot be granted comity and is not legally binding. In each individual trial, the secular nature of divorce or marriage must not only be alleged but also proven as shown by the case In re Marriage of Elgammal and Aboutaleb (In re Marriage of Elgammal and Aboutaleb, Cal. Ct. App., Dec. 8, 2010). In this trial the husband Aboutaleb

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stated that he divorced his wife Elgammal in the customary Egyptian way “according to the Law and Sharia” (In re Marriage of Elgammal and Aboutaleb, Cal. Ct. App., Dec. 8, 2010). He claimed this in order to challenge the validity of the ongoing proceedings, however, he failed to provide any legal evidence that he had divorced secularly as well as religiously. As such, the court denied his claims and refused to grant comity to the divorce. Other cases (Elahham v. Al-Jabban (Elahham v. Al-Jabban 2017), Garba v. Ndiaye (Garba v. Ndiaye 2016), and Yehia v. Goma (Yehia v. Goma 2017), uphold the principle that a divorce or marriage must be secular as well as religious to be granted comity. These cases are clear, American judges do not outright reject Shari’a based cases nor do they give them deference without consideration of comity standards. In application, judges treat Shari’a law with the same established practices which have been used to adjudicate all other religious law for two centuries. In the study of Shari’a law there is nothing which excludes it from this legacy. This conclusion is affirmed by an array of professors, attorneys, legislators, judges and the American Bar Association who have denounced the anti-Shari’a movement and all other “federal or state laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of the entire body of law or doctrine of a particular religion” (American Bar Association Adopted by the House of Delegates 2011). These experts stand resolved that the presence of Shari’a law in American court systems is not a threat to American law, but a demonstration of it. Shari’a law is in no way a danger to American law, making the movement to ban Shari’a law more sinister. There is an argument to be made that “the anti-Shariah campaign...appears to be an end in itself, aimed at keeping Muslims on the margins of American life” (Elliot 2011). This has been echoed by Muslim communities who assert that the anti-Shari’a movement is “purely a political wedge to create fear and hysteria” (Elliot 2011). As previously established, comity is built around respect for other organizations' legal systems, a blind ban of Shari’a law sends an unmerited message of intolerance. It is a statement that Shari’a law, and subseqently Islam itself, is contrary to American law and values. It labels Shari’a law as so antithetical to American law that it deserves consideration contrary to precedent and logic. This is not without consequence for Muslim communties. In 2015, hate crimes against Muslims increased by 67 percent (Shanmugasundaram 2018). As demonstrable, failure to give Shari’a law its due diligence as a legal system perpetrates Islamophobia and is harmful to domestic and international tolerance.

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References Albano, Christine, and Laura W. Morgan. "The Intersection Of Sharia And Family Law: A Policy And Case Summary". Cdn.Ymaws.Com. 2917. Web. Aleem v. Aleem, 947 A.2d 489, 502 (Md. 2008) American Bar Association Adopted by the House of Delegates. 2011. "113A." Brougher, Cynthia. "Application Of Religious Law In U.S. Courts: Selected Legal Issues." Fas.Org. 2011. Web. "Comity". 2020. LII / Legal Information Institute. Elahham v. Al-Jabban 899 N.W.2d 768 (Mich. Ct. App. 2017). Elliot, Andrea. 2011. "The Man Behind The Anti-Shariah Movement". Nytimes.Com. https://www.nytimes.com/2011/07/31/us/31shariah.html. "Falah V. Falah". (Ohio Ct. App. Mar. 27, 2017) Garba v. Ndiaye 132 A.3d 908 (Md. Ct. Spec. App. 2016) In re Marriage of Elgammal and Aboutaleb 2010 WL 4970224 (Cal. Ct. App., Dec. 8, 2010) Johnson, Ross. 2012. A Monolithic Threat: The Anti-Sharia Movement and America’s Counter-Subversive Tradition, 19 Wash. & Lee J. Civ. Rts. & Soc. Just. 183. Leslie Peirce, ‘Fatma’s Story’, Morality Tales: Law and Gender in the Ottoman Court of Aintab. Berkeley: University of California Press, 2003, pp. 351-74 (e-book). Michael, Robert. 2012. "The Anti-Sharia Movement And Oklahoma's Save Our State Amendment - Unconsitutional Discrimination Or Homeland Security?". Core.Ac.Uk. https://core.ac.uk/download/pdf/80037905.pdf. Quraishi-Landes, Asifa. 2013. "Rumors Of The Sharia Threat Are Greatly Exaggerated: What American Judges Really Do With Islamic Family Law In Their Courtrooms". Digitalcommons.Nyls.Edu. Shanmugasundaram, Swathi. 2018. "Anti-Sharia Law Bills In The United States". Southern Poverty Law Center. "Sharia: The Threat To America". 2016. Centerforsecuritypolicy.Org. Tarikonda v. Pinjari (Mich. Ct. App. 2009): Michigan Law defeats Extralegal Divorce Attempt’.”

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Yehia v. Goma 55 Misc.3d 1201(A), 55 N.Y.S.3d 695 (Table), 2017 WL 1052251, 2017 N.Y. Slip Op. 50327(U) (N.Y. Sup. Ct., Mar. 20, 2017).

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PRIVACY PAST AND PRESENT: THE SUPREME COURT AND JUSTICE BRANDEIS’ LEGACY BY NERINE UYANI K Louis Brandeis, a lawyer and judge in the late-19 through mid-20 century, was influential in shaping American jurisprudence. Known as the “people’s attorney” for defending a range of civil liberties and individual rights, Brandeis famously advocated for the right to privacy, a concept that he understood to be inherent in the laws of the United States Constitution (National Public Radio 2016). His conceptualization and justification of “the right to be let alone” was instrumental in the Supreme Court’s interpretation of privacy rights and continues to be cited in modern cases concerning privacy. Although the Constitution contains no express “right to privacy,” Brandeis’ reasoning that constitutional protections extend beyond the physical forms the foundation of the Court’s evolving protections of privacy in the face of modern invasive surveillance technologies. This paper explores Brandeis’ formative ideas about privacy and their application to later Supreme Court cases. An overview of the development of the right to privacy found in the Fourth Amendment is followed by a discussion of means the Court has in protecting privacy rights in the 21 century. th

Brandeis and “The Right to Privacy” In their 1890 article “The Right to Privacy” published in the Harvard Law Review, Brandeis and Samuel Warren discuss the need to recognize and protect privacy rights. They write of existing privacy concerns, “For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer” (Warren and Brandeis, 195). Warren and Brandeis recognize that the availability of portable, affordable cameras and audio recording devices, along with the rise of yellow journalism, introduced new forms of invasion into private life. They argue for the articulation of legal protections, viewing the right to privacy as an existing legal principle that had already been followed in cases involving protections of one’s home, one’s private papers, and one’s reputation. Warren and Brandeis compare privacy rights to copyright laws, illustrating that protections for both exist independently of the material or the content that is protected: Neither does the existence of the right depend upon the nature or value of the thought or emotions, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay … In every such case the individual is entitled to decide whether that which is his shall be given to the public. (Warren and Brandeis, 199) Brandeis’ early ideas about privacy revolve around the need to extend protections beyond the physical. He thought that the “incorporeal rights” that emerged from legal protections of physical

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property further expanded to protect intangible “products and processes of the mind” (Warren and Brandeis, 194). Warren and Brandeis assert that the articulation of a right to privacy is to follow a similar legal development to protect a more fundamental principle that they termed “inviolate personality” (Warren and Brandeis, 205). This principle protects not the individual’s work from physical theft or appropriation but the peace of mind afforded by having control over whether that work is made public or kept private. Olmstead and Katz After Brandeis was appointed Associate Justice of the United States Supreme Court, he dissented in the 1928 case Olmstead v. United States in which the government obtained incriminating evidence from wiretapping phone lines to intercept private conversations. The wiretapping equipment was installed “in the basement of a large office building and on public streets” (Olmstead v. United States, 438), raising the question of whether privacy could be expected in spaces outside of one’s home. In a 5-4 decision, the Court ruled that wiretapping did not constitute a search and seizure under the Fourth Amendment because no physical invasion of the home or seizure of private property had occurred. The Court distinguished phone conversations from sealed letters and viewed the Fourth Amendment as protecting “tangible personal property” (Olmstead, 451). The Court interpreted the protections against warrantless searches and seizures to exist where trespass occurs, and ruled that the interception of a telephone conversation did not violate the Fourth Amendment because no trespass occurred. Brandeis disagreed with the majority reasoning that the Fourth Amendment did not extend to protect telephone conversations, and he advanced the argument that the Fourth Amendment protects a broader “right to be let alone.” (Olmstead, 478). Brandeis argued that constitutional protections of privacy applied beyond physical trespass. Brandeis drew upon the 1886 case of Boyd v. United States, in which the government compelled the defendant E.A. Boyd & Sons to produce their own papers in search of incriminating evidence (Boyd v. United States, 616). In that case, the Court ruled that although the government did not commit a physical intrusion of the home, the government’s actions had the effect of an unwarranted search and seizure, and that the Fourth Amendment protects “the sanctity of a man’s home and the privacies of life” from such invasions (Boyd, 630). Brandeis cited that decision to support his argument that the Court should interpret constitutional protections of privacy to apply beyond physical trespass, quoting Justice Joseph Bradley: “It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property” (Boyd, 630). In the 1967 case Katz v. United States, the Supreme Court eventually overturned its previous decision in Olmstead and developed a test for the “reasonable expectation of privacy,” in effect advancing Brandeis’ idea of one’s “right to be let alone” (Katz v. United States, 347). Presented with the question of whether the government’s installation of a microphone outside of a public phone booth violated the Fourth Amendment, the Court expanded its previous interpretation of the concept of “trespass” and ruled that the right to remain free from unreasonable searches and seizures does exist beyond the physical home (Katz, 360). The Court reasoned that because the

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Fourth Amendment “protects people—and not simply ‘areas,’” its reach “cannot turn upon the presence or absence of a physical intrusion” (Katz, 353). In Justice John Marshall Harlan’s concurrent opinion, he articulated the idea of a “reasonable” expectation of Fourth Amendment protection. Harlan created a two-part test to determine whether the government was violating Fourth Amendment rights. The “Katz test,” as it came to be known, included two requirements— “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’”—that if met, a violation of that expectation would constitute a violation of the Fourth Amendment (Katz, 361). Jones and Carpenter Over time, advances in technology have introduced new forms of surveillance and tools of invasions into private life that led the Court to find other justifications for protecting the right to privacy. For example, in the 2012 case United States v. Jones, which considered the warrantless long-term GPS tracking of defendant Antoine Jones’ vehicle, although the justices unanimously agreed that Jones’ Fourth Amendment rights had been violated, they were split on the reasoning of the decision (Goldstein 2012). In the opinion of the Court, written by Justice Antonin Scalia, the government’s actions were a physical trespass that violated the Fourth Amendment. Scalia wrote that the Katz test did not apply nor that it would have shown that Jones had a reasonable expectation of privacy (United States v. Jones, 400). However, the concurring opinions demonstrated the possibility of finding a reasonable expectation of privacy using other lines of reasoning. Justice Samuel Alito’s concurrence argued that the question should be framed as not whether physical trespass occurred but rather whether a reasonable expectation of privacy was violated (Jones, 419). He criticized the narrowness of the ruling for placing no limits on the government with respect to electronic monitoring as long as it does not involve attaching a tracking device to personal property: [I]f long-term monitoring can be accomplished without committing a technical trespass— suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection. (Jones, 420) Justice Alito argued that with technological developments that made surveillance cheaper and easier, the Katz expectation-of-privacy test more appropriately addressed the question at hand. Justice Sonia Sotomayor, though joining Scalia’s opinion, wrote a concurrence that emphasized the existence of a reasonable expectation of privacy even in the absence of trespass. She questioned the premise that an individual loses his expectation of privacy in information once it is voluntarily disclosed to a third party: This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks ...

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I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. (Jones, 417) She agreed with Justice Alito that “the same technological advances that have made possible non trespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations” (Jones, 415). This begs the question of whether privacy expectations in modern society have shifted so far that legal tests, such as the Katz test, would require adjustments to account for those expectations in cases that do not involve “a classic trespassory search” (Jones, 412). In cases where the government illegally obtains personal information without physical trespass, the Court increasingly uses the expectation of privacy as justification for privacy protections. For example, in the 2017 case Carpenter v. United States, the Court considered the constitutionality of the government’s warrantless acquisition of Carpenter’s cell site location information (Carpenter v. United States). Phone companies collect this location information each time a phone is used to make a call, send or receive a text or email message, or access the Internet. The Court, drawing parallels with the collection of GPS information in Jones, ruled that the government, by acquiring the “detailed, encyclopedic, and effortlessly compiled” cell site location information records providing “near perfect surveillance” of an individual’s movements, did indeed invade Carpenter’s reasonable expectation of privacy (Carpenter). In a 5-4 decision, the Court ruled that the government’s actions amounted to a warrantless search and seizure that violated the Fourth Amendment. The dissenting justices did not challenge the use of reasonable expectation of privacy as a justification; rather, they mostly argued that the Fourth Amendment did not apply for other reasons. As can be seen from more recent cases, the majority of justices have applied expectation of privacy as their justification instead of continuing to make physical trespass arguments when protecting privacy rights. Modern Implications Since privacy is not explicitly mentioned but viewed as being inherent in the Constitution, the Court may continue to struggle with the complexities of justifying the right to privacy on a case-by-case basis. The Gale Encyclopedia of American Law recognizes that privacy holds different meanings under different legal contexts and defines the term to generally include 1) “the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation, or regulation”; 2) “the right to be let alone”; and 3) “the right to prevent the nonconsensual disclosure of sensitive, confidential, or discrediting information” (Batten, 109). The first definition relates to self-determination, the second to seclusion, and the last to secrecy. Although this paper focuses on the Fourth Amendment protections of the “right to be let alone,” the Court has also used other Amendments to justify protections of other aspects of privacy. In the 1973 case Roe v. Wade, the Court reasoned that the Due Process Clause of the Fourteenth Amendment protects the mother’s choice to have an abortion, corresponding to the self-determination aspect of privacy (Oyez, “Roe v. Wade”). The Miranda warning, established as

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a result of the 1966 case Miranda v. Arizona, protects the Fifth Amendment right against selfincrimination, relating to the secrecy aspect of privacy (Oyez, “Miranda v. Arizona”). The Court has demonstrated that it can interpret the Constitution to justify different privacy protections despite new forms of intrusion—a challenge that the Court will have to continue to navigate with the rise of the Internet and social media platforms. Rapid technological developments in the 21 century increase the complexity of privacy issues, further blurring the lines between public and private figures, between voluntary and involuntary disclosure of personal information, and between legal and illegal searches without warrants. In 2013, whistleblower Edward Snowden exposed the mass surveillance program by the National Security Agency (NSA) that involved the collection of millions of Americans’ telephone records, sparking debates about privacy and surveillance in the digital era (Satter 2020). Snowden revealed that the NSA could remotely activate cell phones to monitor phone calls, conversations, and movements using the cameras and microphones that appear turned off (Satter 2020). In September 2020, seven years after Snowden’s exposé, the U.S. Court of Appeals for the Ninth Circuit ruled that the NSA’s activities were illegal and violated Americans’ privacy rights (Satter 2020). The challenge, though, is for legal protections of privacy to keep pace with the development of invasive technologies and means of surveillance. Modern technological advancements make it increasingly easier to invade people’s privacy and at a much larger scale. Widely used high-tech devices, such as smartphones, lend themselves to surveillance in ways that far exceed what was previously possible. Mass surveillance can be done completely remotely and passively, introducing new challenges to traditional notions of invasion and privacy. Like the GPS tracking device in the Jones case, evolving technologies will ask the Court to develop its justification of the right to privacy. For now, the Supreme Court’s trend toward justifying privacy protections beyond physical trespass validates and preserves Justice Brandeis’ original ideas. In light of these developments, whether the concept of physical trespass has outlived its usefulness as a justification for protecting the right to privacy remains to be seen. st

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References Boyd v. United States, 116 U.S. 616 (1886). Carpenter v. United States, 585 U.S. ___ (2018). Goldstein, Tom. “Why Jones Is Still Less of a Pro-Privacy Decision Than Most Thought (Conclusion Slightly Revised Jan. 31).” SCOTUSblog, 2012. https://www.scotusblog.com/2012/01/why-jones-is-still-less-of-a-pro-privacy-decision-thanmost-thought/. Katz v. United States, 389 U.S. 347 (1967). “Miranda v. Arizona.” Oyez. Accessed October 19, 2020. https://www.oyez.org/cases/1965/759. Olmstead v. United States, 277 U.S. 438 (1928). "Privacy." In Gale Encyclopedia of American Law, 3rd ed., edited by Donna Batten, 8:109–118. Detroit: Gale, 2010. Gale eBooks. https://link.gale.com/apps/doc/CX1337703467/GVRL. “Revisiting the Tenure of Supreme Court Justice Louis Brandeis, the ‘Jewish Jefferson.’” Fresh Air. National Public Radio, June 7, 2016. https://www.npr.org/2016/06/07/481076322/revisiting-the-tenure-of-supreme-court-justice-louisbrandeis-the-jewish-jeffers. “Roe v. Wade.” Oyez. Accessed October 19, 2020. https://www.oyez.org/cases/1971/7018. Satter, Raphael. “U.S. Court: Mass Surveillance Program Exposed by Snowden Was Illegal.” Reuters, September 2, 2020. https://www.reuters.com/article/us-usa-nsa-spying/u-scourt-mass-surveillance-program-exposed-by-snowden-was-illegal-idUSKBN25T3CK. United States v. Jones, 565 U.S. 400 (2012). Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4, no. 5 (1890): 193–220. https://doi.org/10.2307/1321160.

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INVESTIGATING HISTORIES OF GENDER DISCRIMINATION IN U.S. IMMIGRATION LAW B Y RU BY S HEA L Y Immigration laws in the U.S. have historically discriminated against women by rendering their citizenship dependent on their husbands, establishing gender-based standards for conferring citizenship to children, and failing to recognize gender-based asylum claims (Olivares, 419). Though recent legislative reforms and Supreme Court decisions have eliminated explicit genderbased classifications in immigration laws, implicit forms of discrimination remain embedded in many U.S. immigration laws and policies. Seemingly gender-neutral immigration laws continue to produce distinct, gendered pathways to immigration for men and women that reinforce traditional gender roles by making female immigrants dependent on their male spouses and relatives (International Organization for Migration). Removing implicit biases against women in U.S. immigration and asylum law will require policies and reforms that consider the different social and economic obstacles facing men and women in an effort to promote the independence and safety of female immigrants and validate gender-based asylum claims. Part 1: Gender Neutral Language and Gender Based Classifications To understand how implicit biases against women became ingrained in U.S. immigration laws, it is necessary to examine the history of overt discrimination against women in immigration and asylum law. Early immigration laws in the U.S. explicitly discriminated against women by utilizing the legal doctrine of coverture. Under coverture laws, a woman's ability to immigrate to the U.S., become a naturalized citizen, and retain natural-born citizenship was dependent on her husband’s citizenship status. The 1855 Naturalization Act automatically granted citizenship to foreign women who married U.S. citizen men while providing no automatic path to citizenship for foreign men who married U.S. citizen women. Coverture continued to shape immigration law into the early 1920s, even as the doctrine became less prominent in other areas of law in the late nineteenth century. The persistence of the coverture doctrine was exemplified by the Expatriation Act of 1907 that expatriated American women who married foreigners and the Immigration Act of 1917 that made it more difficult for women who were U.S. citizens to petition on behalf of their foreign husbands for citizenship. The Expatriation Act stripped natural-born female citizens of their citizenship status if they married men who were ineligible for citizenship. The Immigration Act made U.S. citizen women who married men from Asian countries completely ineligible to petition for their citizenship. It imposed literacy tests on the direct family members of female petitioners while exempting the direct family members of male petitioners from these same literacy tests. It took until the passage of the 1922 Cable Act for the explicitly discriminatory provisions of the Naturalization and Expatriation Acts to be partially revoked (Olvarez, 425). The Immigration and Nationality Act of 1952 (INA), which is the basis for most U.S. immigration laws today, was designed to mitigate the lingering influences of coverture in immigration law by introducing gender-neutral language (Olvarez, 425). Though the INA used the

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term “spouse” instead of “husband” and “wife,” it contained several gender-based classifications influenced by pervasive gender stereotypes. For instance, Section 309 of the INA only grants citizenship to children of unmarried U.S. citizen fathers and noncitizen mothers if the father proves paternity of the child and provides a written guarantee of financial support before the child turns eighteen. There is no comparable requirement for children of unmarried U.S. citizen mothers and noncitizen fathers (Equality Now). The INA also required unwed citizen fathers to have physically lived in the U.S. for ten years prior to a child’s birth to transmit citizenship to that child. An unwed citizen mother, however, only had to live in the country for one year to confer citizenship to her child (Stuzzieri, 1147). These gender-based classifications stem from traditional beliefs about women being the proper caregivers for their children and men being absent and uninterested in the lives of their nonmarital children (Sessions v. Morales-Santana). The INA also incorporated a family-based immigration visa petitioning process that required the U.S. citizen spouse to petition for their foreign spouse’s immigration status. Though the policy’s language is gender-neutral, most primary petitioners are men and the petitioning process renders many women reliant on their male spouses or family members to obtain citizenship (Olivares). While some of these policies seem to benefit women by placing less stringent requirements on unwed citizen mothers than unwed citizen fathers, they rely on traditional gender stereotypes about the role of mothers and fathers in raising children and can render women and their children’s citizenship status dependent on a citizen spouse or father. The gender-based classifications in the INA were upheld by several U.S. Supreme Court decisions because gender-based classifications in immigration cases do not require the same level of scrutiny as gender-based classifications in other areas of U.S. law. This is partially because immigration law is governed by the plenary power of Congress. The plenary power doctrine allows Congress to make distinctions among immigrants that would be unconstitutional if applied to citizens (Epps). For this reason, many complaints of gender discrimination in immigration law focus on discrimination against the citizen parent rather than the petitioning non-citizen child. The U.S. Supreme Court considered an equal protection challenge to gender-based classifications within the INA for the first time in 1977. Ramon Fiallo and two other sets of unwed fathers and their children challenged a section of the INA that defined a “child” as “an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by virtue of his relationship with his natural mother” (Fiallo v. Bell, 789). This definition effectively excluded the relationship between an unwed citizen father and his child from the special preference immigration status offered to children of unwed citizen mothers. The plaintiffs argued that these provisions were unconstitutional because they denied them equal protection under the laws by discriminating against unwed citizen fathers and their children without a compelling justification. They also claimed that the statute violated their right to due process by assuming an “absence of strong psychological and economic ties between natural fathers and their children born out of wedlock” (Fiallo v. Bell, 791). The Supreme Court upheld the constitutionality of the gender classifications on the basis that Congress’s power to regulate immigration was “largely immune from judicial control” and there was no need for greater

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judicial scrutiny than the ordinary scrutiny typically applied to immigration cases (Fiallo v. Bell, 787). In 1998, the U.S. Supreme Court once again upheld the constitutionality of gender classifications when it ruled that the INA’s requirement that an unwed citizen father provide proofof-paternity before the child’s eighteenth birthday was constitutional (Miller v. Albright, 445). The plaintiff in the case, Lorelyn Penera Miller, was the child of an unwed citizen father and noncitizen mother. Miller challenged the proof-of-paternity requirement on the basis that it violated her father’s Fifth Amendment right to equal protection by applying suspect gender classifications without justification. The Supreme Court found that the statute was subject only to rational basis scrutiny because it was based on biological differences between men and women rather than gender stereotypes (422). The Court argued that these biological differences provide a relevant basis for differing immigration rules since a mother’s relationship to her child is “verifiable by birth” in a way that the father’s relationship is not. The Court ultimately ruled that the statute was constitutional because it advanced the government’s interest in ensuring a reliable and healthy biological relationship between an unwed citizen father and his child (Miller v. Albright, 420). The U.S. Supreme Court finally struck down the overt gender-based classifications in the immigration code in 2017 when it ruled that it was unconstitutional for the INA to impose different U.S. residency requirements on unmarried citizen mothers and unmarried citizen fathers (Sessions v. Morales-Santana, 1701) The case was brought by Luis Morales-Santana, the son of an unwed U.S. citizen father and non-citizen mother, who faced deportation after several criminal convictions. Morales-Santana asserted his U.S. citizenship at birth based on the citizenship of his father, a U.S. citizen who had accepted parental responsibility of Morales-Santana before his eighteenth birthday. However, the father fell short of the five-year physical presence requirement of the INA by 20 days, meaning that he could not confer citizenship to his son. Morales-Santana claimed that the INA’s different residency requirements based on gender violated his father’s right to equal protection because unwed citizen fathers had a five-year residency requirement while unwed mothers only had a one-year residency requirement (1686). In the majority opinion authored by Justice Ginsburg, the Supreme Court ruled that the gender-based classification in the INA was subject to heightened scrutiny because the idea that the unwed mother is the natural guardian of a child is based on stereotypes about women’s domestic role in society. The Court struck down the different residency requirements as unconstitutional because they did not find an “exceedingly persuasive justification” for the rule. Until Congress determined the proper residency requirement for unwed mothers and fathers, the Court decided the five-year residency requirement should be applied to all unwed parents (1701). Though explicit gender-based classifications in immigration law were determined to be unconstitutional in the Sessions v. Morales-Santana case, implicit biases against women are still present in many U.S. immigration laws. Women make up slightly more than half of the total number of immigrants residing in the U.S., but their typical path to legal immigration differs from that of men (International Organization for Migration, 60). Men make up the majority of employment-based immigration visas while women make up the majority of family-sponsored .

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immigration visas (Department of Homeland Security, 9). While many women do obtain employment visas, they do so largely through a family relationship with a male primary beneficiary. This disparity can largely be attributed to the fact that employment-based immigration favors highly skilled workers with advanced education and wealth, but women around the world tend to have fewer educational and career opportunities than men. The definition of skilled labor is also biased towards male-dominated fields and excludes female-dominated careers like childcare and housekeeping (Fitzpatrick, 25). For instance, the H-1B visa program (which grants legal status to highly skilled temporary foreign workers) has a strong bias in favor of men working in high-tech fields. While the Department of Homeland Security has repeatedly denied requests to release information about the gender distribution of H-1B visas, the employees of the outsourcing companies that receive the majority of H-1B visas are 85% male (Parker). This inability to obtain employment-based visas renders many immigrant women dependent on their male family members and excludes them from the legal job market. Women who enter the U.S. on a familybased immigration visa often have to wait years to obtain permission to work or establish their permanent residence status apart from their male sponsor due to immigration processing backlogs (Legal Momentum 2020). This inability to work or establish legal residency independent of a male sponsor perpetuates the traditional idea that the man should be the primary breadwinner of the family and renders immigrant women completely dependent on men. It also puts women at higher risk of experiencing physical or mental abuse because their legal and financial dependency on male family members can trap them in abusive relationships (Salcido and Menjivar, 335-68). Several seemingly gender-neutral laws from the end of the twentieth century have contributed to the overwhelming dependency of female immigrants on their male family members. The 1986 Immigration Reform and Control Act (IRCA) strictly prohibited employers from hiring undocumented workers while also granting legal status to large numbers of undocumented immigrants engaged in agricultural labor. The statute disproportionately benefited men in maledominant agricultural industries while cracking down on undocumented women working in childcare and housekeeping (Olivares, 428). The law also did not provide derivative benefits for immediate family members of eligible agricultural workers, which resulted in an increase in undocumented female immigrants who wanted to live with their family members (Fitzpatrick, 31). This meant that an increasing number of undocumented women entered the U.S. without the ability to legally obtain a job, rendering them completely dependent on the income of their male sponsor. The Immigration Marriage Fraud Amendments (IMFA) of 1986 were passed out of legislative concern that fraudulent marriages were occurring simply for immigration benefits. The IMFA created a petitioning process in which the foreign spouse was restricted to conditional residency for a two-year period before obtaining permanent residency status. This meant that for two years, the foreign spouse was completely dependent on the petitioning spouse who could revoke support for their immigration petition at any time. The IMFA forced many immigrant domestic violence victims to continue to endure abuse or risk losing their legal immigration status. The 1994 Violence Against Women Act (VAWA) gave certain immigrant victims of domestic abuse the right to self-petition for immigration benefits, but it involved a lengthy application

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process with uncertain outcomes that discouraged many victims from self-petitioning (Olivares, 426). Part 2: Recognizing Gender Based Persecution Aside from family and employment-based immigration, women seeking asylum in the U.S. have also faced discrimination due to the reluctance of the Board of Immigration Appeals (BIA) to recognize gender-based persecution. In the Refugee Act of 1980, the U.S. adopted provisions of the UN Convention relating to the Status of Refugees that define a refugee as a person who has suffered persecution in the past or who has a “well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group (PSG), or political opinion” (Anker). Until the late 1990s, asylum seekers fleeing gender-based violence and discrimination were typically denied asylum in the U.S. because they were not considered members of a “particular social group” targeted for persecution. Issues like domestic abuse, female genital mutilation, and rape were largely unrecognized by U.S. asylum law until prominent advocacy organizations like the Harvard Immigration and Refugee Clinic (HIRC) began advocating for asylum seekers fleeing gender-based violence and discrimination. In its 1985 decision in Matter of Acosta, the BIA laid the foundation for future gender-based asylum claims by defining a “particular social group” as a “common, immutable characteristic that members of a group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences” and citing sex as an example (Anker). Despite this definition, the BIA has been inconsistent in its interpretation of gender-based asylum claims. This inconsistency stems in part from the requirement that an asylum seeker demonstrate a “well-founded fear of persecution” which may be interpreted differently by male immigration judges and female asylum seekers (Salcido and Menjívar, 6). The first time the BIA granted an asylum claim on the basis of gender was in the widely publicized 1996 case of Fauziya Kassindja, which became known as the Matter of Kasinga after immigration authorities improperly recorded Kassindja’s name (Musalo, 46). Kassindja applied for political asylum in the U.S. because she feared she would be subject to forced marriage and genital mutilation if she returned to her home country of Togo. Kassindja argued that she was a member of a group of young women in Togo who opposed female genital mutilation and would therefore be singled out for persecution upon return to the country. The first immigration judge that Kassindja appeared before denied her asylum claim, ruling that she was not being singled out since everyone in her tribe was forced to undergo these practices. Kassindja appealed the judge’s decision to the BIA which granted her asylum claim after determining that female genital mutilation is severe enough to constitute persecution and Kassindja was a member of a particular social group defined by gender (McKinnon, 44). However, the BIA did not apply a consistent approach to gender-based asylum cases after ruling on Kassindja’s case. In 1999, the BIA reversed an immigration judge’s decision to grant asylum to Rody Alvarado, a Guatemalan woman fleeing domestic abuse (McKinnon, 19). Alvarado had been subject to threats and violent assaults by her husband and was unable to secure

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police protection in Guatemala. She had unsuccessfully attempted to flee from her husband within Guatemala before seeking asylum in the U.S., but he eventually tracked her down and beat her until she was unconscious. The original immigration judge had granted Alvarado asylum on the basis that she suffered past persecution and had a well-founded fear of future persecution at the hands of her husband, whom the Guatemalan government refused to punish. On appeal from the agency formerly known as Immigration and Naturalization Services (INS), the BIA reversed the judge’s decision and denied asylum to Alvarado because she failed to establish that the harm she suffered was the result of membership in a particular social or political group. Alvarado appealed the decision but was not officially granted asylum until 2009, over ten years after she made her original asylum claim (Musalo). In 2014, the BIA issued a landmark decision on domestic abuse and asylum claims in the Matter of A-R-C-G- (Anker). The case involved a mother and her three children who fled her abusive husband in Guatemala after facing several instances of severe physical abuse and sexual assault. The respondent reported the abuse to the Guatemalan police, who refused to interfere in the marital relationship. She also attempted to hide within Guatemala on several occasions, but she was always found by her husband. An immigration judge initially denied her asylum request because he found that the abuse constituted individual criminal acts rather than persecution. On appeal, the BIA granted her request for asylum on the basis that she suffered harm great enough to constitute past persecution because of her membership in a particular social group comprised of “married women in Guatemala who are unable to leave their relationship (See Matter of A-R-CG). The BIA’s decision in the Matter of A-R-C-G- set a precedent that domestic abuse victims who were unable to leave their relationships or secure state protection could qualify for asylum in the U.S However, on June 11, 2018, in the Matter of A-B-, Attorney General Jeff Sessions attempted to put an end to the recognition of domestic abuse as a form of persecution subject to asylum protection. Sessions reversed a grant of asylum to a Salvadoran woman who had fled to the United States after suffering 15 years of domestic violence. In the decision, Sessions revoked the BIA’s ruling in the Matter of A-R-C-G- and announced that claims pertaining to domestic violence should generally no longer be approved (Anker 2020). This decision dealt a major blow not only to asylum seekers but also to the disproportionately female victims of domestic abuse whose struggles are minimized by the failure to hold domestic abuse to the same standards as other forms of persecution. While other areas of immigration law have gradually made progress towards greater gender equality and recognition of the rights of immigrant domestic abuse victims, asylum law has been marked by uncertainty and inconsistency on gender-based asylum claims. This inconsistency has rendered the status of female asylum seekers precarious as changes in political administrations can completely alter the application of asylum laws for women. Though domestic abuse affects both men and women, attempts to separate domestic abuse from persecution disproportionately affect women and ultimately represent an attempt to downplay women’s issues by relegating them to the domestic sphere (McKinnon 2016).

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Female immigrants are disproportionately dependent on male sponsors and female asylum seekers are deprived of the ability to escape gender-based persecution due to the implicit forms of discrimination embedded in U.S. immigration law and the BIA’s failure to consistently recognize gender-based asylum claims (Salcido and Menjivar, 6). Though immigration and asylum laws no longer explicitly discriminate against women, the practical application of the laws results in different experiences for men and women seeking legal residence in the US. The social and economic realities of women around the world result in few women having the opportunity to obtain employment-based visas as principal applicants, meaning they primarily enter the U.S. based on sponsorship from male spouses and family members. This dependency reinforces traditional gender stereotypes and makes immigrant women especially vulnerable to domestic abuse and exploitation. Similarly, seemingly gender-neutral asylum laws disadvantage some female asylum seekers because individual immigration judges are free to interpret the definition of a “particular social group” to include or exclude gender-based persecution. To reduce the impact of implicit bias against women in immigration law, policymakers must employ a gender-based analysis of the practical effects of current laws that is grounded in an understanding of the unique challenges and circumstances facing immigrant women. It is not sufficient to have facially neutral laws if they create gendered pathways towards immigration in practice. Though women make up more than half of all immigrants currently residing in the U.S., legislative reforms are needed to address the disproportionate number of female immigrants that are dependent on principal visa holders. Reforms that provide a more affordable and accessible pathway to citizenship for “unskilled” workers (such as domestic care workers) will foster greater independence among female immigrants. A program that grants legal status to undocumented domestic workers (similar to the one provided for agricultural workers through the IMCA) would also benefit undocumented women. For people who immigrate on family-sponsored visas, a simpler and more efficient path towards obtaining a work permit and permanent resident status would help reduce the dependence of female immigrants on their sponsors (Salcido and Menjivar, 2012). To counter the inconsistency of current asylum laws, a standard principle based on the understanding that violence against women is a form of persecution should be applied to genderbased asylum claims. The precedents set by the BIA in the Matter of Acosta and reaffirmed in the Matter of A-R-C-G- provide guidance on how to approach gender-based asylum cases by defining gender as a particular social group and acknowledging the fact that pervasive domestic abuse is severe enough to constitute persecution. Conclusion Significant progress has been made towards gender equality in immigration and asylum law over the past 30 years, but there have also been major setbacks and persistent inequalities in the application of the laws. Legislation that contains gender-neutral language can produce inequalities when policymakers fail to account for the different social and economic circumstances of men and women. To reduce the dependency and uncertainty that characterizes the experiences

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of many women who seek legal residency and asylum in the U.S, policymakers should aim to reduce the implicit biases that remain ingrained in U.S. immigration law by considering the lived differences between men and women and establishing violence against women as a form of persecution.

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References Anker, Deborah. “The History and Future of Gender Asylum Law and Recognition of Domestic Violence as a Basis for Protection in the United States.” American Bar Association, April 28, 2020. Calavita, Kitty. “Gender, Migration, and Law: Crossing Borders and Bridging Disciplines.” The International Migration Review 40, no. 1 (2006): 104–32. Department of Homeland Security. “Table 9. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Selected Demographic Characteristics: Fiscal Year 2018,” December 23, 2019. Equality Now. “The Immigration and Nationality Act.” Accessed October 11, 2020. Epps, Garrett. “Could Donald Trump’s Proposed Ban on Muslim Immigration Be Constitutional?” The Atlantic, October 24, 2016. Fiallo v. Bell, 430 U.S. 787, 790, 97 S. Ct. 1473, 1476, 52 L. Ed. 2d 50 (1977). Fitzpatrick, Joan. “The Gender Dimension of U.S. Immigration Policy.” Yale Journal of Law and Feminism, no. 1 (1997): 23–50. International Organization for Migration. “Migration in the 2030 Agenda.” Geneva, Switzerland. 2017. Legal Momentum. “Gender Bias and Immigration Policy.” Accessed October 10, 2020. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) McKinnon, Sarah. Gendered Asylum: Race and Violence in U.S. Law and Politics. University of Illinois Press, 2016. Miller v. Albright, 523 U.S. 420, 421, 118 S. Ct. 1428, 1430, 140 L. Ed. 2d 575 (1998). Musalo, Karen. “A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women’s Claims.” Refugee Survey Quarterly; Oxford 29, no. 2 (March 2010): 46. Olivares, Mariela. “Unreformed: Towards Gender Equality in Immigration Law.” Chapman Law Review 18, no. 2 (January 1, 2015): 419. Parker, Ashley. “Gender Bias Seen in Visas for Skilled Workers (Published 2013).” The New York Times, March 18, 2013, sec. U.S.

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Salcido, Olivia, and Cecilia Menjívar. “Gendered Paths to Legal Citizenship: The Case of Latin-American Immigrants in Phoenix, Arizona.” Law & Society Review 46, no. 2 (2012): 335– 68. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1683, 198 L. Ed. 2d 150 (2017). Struzzieri, Alexandra. “Gender Inequality in Immigration Law: Why a Parent’s Gender Should Not Determine a Child’s Citizenship.” St. John’s Law Review 90, no. 4 (December 2016): 1145–68.

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A TALE OF TWO ADMINISTRATIONS: TRANSGENDER MILITARY RIGHTS, 2008-2020 B Y R E B E C CA Z L A T KI N Gender identity and sexual orientation in the military have long been controversial. The Constitution generally provides the President and the executive branch with authority over the armed forces and their policies regarding LGBTQ service members have long sparked debate amongst the American people. The rights of transgender individuals to serve in the military has become a hot topic since President Donald Trump called for a transgender ban. This marks a regression from the many policy changes regarding LGBTQ service members which occurred during the Obama administration. According to a 2009 publication from the National Center for Transgender Equality, the term transgender is “an umbrella term for people whose gender identity, expression, or behavior is different from those typically associated with their assigned sex at birth, including but not limited to transsexuals, crossdressers, androgynous people, genderqueers, and gender non-conforming people” (Tadlock 2014). While the Constitution does not specifically mention transgender people, supporters of openly transgender service members have asked the courts to use strict scrutiny to consider whether the Trump administration’s ban violates equal protection, substantive due process, and the First Amendment of the Constitution. The Fifth Amendment's Due Process Clause requires the United States government to practice equal protection (Robson 2018). Proponents of removing the barriers which prevent citizens from joining the military argue that this is not a matter of requesting special treatment. Rather, it is a push for all service members to be held to the same standards. While this paper focuses on the current policy debate over the rights of transgender individuals in the military, it frames the issue by referencing policies which affect the broader LGBTQ community. Additionally, the author of this paper recognizes that, until recently, few political scientists have focused directly on the politics of the transgender community. According to a 2009 publication from the National Center for Transgender Equality, “this coincides with the relatively marginalized status of transgender issues within the broader lesbian, gay, bisexual, and transgender (LGBT) movement throughout the years (Tadlock 2014). Initial victories for the military’s transgender community revolved around the broader LGBTQ community. Until its repeal in 2011, the U.S. policy towards military service by gays, bisexuals, and lesbians was known as “Don’t Ask, Don’t Tell” (DADT). This policy was a result of Department of Defense directive 1304.26, incorporated during the Clinton Administration. Under the section titled “Provisions Related to Homosexual Conduct,” a compromise was made for members of the armed services who engaged in homosexual acts. The legislation held that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.” It additionally specified, however, that “applicants for enlistment, appointment, or induction shall not be asked

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or required to reveal whether they are heterosexual, homosexual or bisexual” (Department of Defense 1993). Under DADT, service members were forbidden from discussing their sexual orientation but not asked about it. Author Kellie Wilson-Buford writes in her book about the effect of the policy. “Though intended to make sexual orientation a non-issue, DADT had the adverse effect of legalizing a basic inequity that the Constitution was supposed to guard against. By preventing gay service members from sharing their experiences, the policy of DADT shielded itself from scrutiny and interrogation and propagated an atmosphere of suspicion and fear for service members whose most innocent gestures often became the means for their court-martial” (Wilson-Buford 201-34). The LGBTQ community played an important role in the 2008 election of President Obama. According to McThomas and Buchanan, “during candidate Obama’s promises of inclusion and civil rights for all, the largest percentage of GLB [Gay, Lesbian, and Bisexual] voters sided with the Democrats” (442-48). A few years later, Obama signed into law the Don't Ask, Don't Tell Repeal Act of 2010, ending almost two decades of the policy. Upon the repeal of DADT, U.S. Under Secretary of Defense Clifford L. Stanley stated that “it remains the policy of the Department of Defense that sexual orientation is a personal and private matter [and] to treat all members with dignity and respect...to ensure maintenance of good order and discipline. There will be zero tolerance for harassment, violence or discrimination of any kind”. When the Repeal Act came into effect in September 2011, Clifford elaborated in a memo which stated that “sexual orientation may not be a factor in accession, promotion, separation, or other personnel decision making” (Department of Defense 2011). It would seem that progress for the LGBTQ community was stemming from, of all places, the military. Throughout Obama’s presidency, changes were made in military policy towards acceptance and accommodation of the LGBTQ community. In the decades prior, the Pentagon considered transgender people as sexual deviants to be ousted from service. After the repeal of DADT, advocates continued to demand further protections for the military’s most marginalized constituency including the expansion of benefits to same-sex partners of military personnel and the inclusion of openly transgender service members. In May 2014, Defense Secretary Chuck Hagel said he was open to reconsidering the ban on transgender people serving openly in the military. He stated his belief that "every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it." He added that transgender issues are "an area that we've not defined enough" (Raddatz 2014). As Obama’s Vice President, Joe Biden affirmed his support and interest in promoting the LGBTQ community in a 2014 speech. “I will not be satisfied [un]til everyone in the lesbian, gay, bisexual, transgender community is afforded the dignity, the freedom, and the equality that my father spoke so clearly of because that's the only way. Only when you do that will we be a whole nation” (Biden 2014). Biden called transgender rights “the civil rights issue of our time.” Then, in July 2015, Hagel’s successor Secretary of Defense Ash Carter released a statement on the Department of Defense’s (DoD) transgender policy. In this statement, he called the DoD’s “current regulations regarding transgender service members...outdated.” He stated his belief that

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these policies “caus[ed] uncertainty that distract[ed] commanders from our core mission.” Carter also outlined the DoD’s plan to ensure all service members were treated equally with dignity and respect. His first directive established a study to identify the implications of the inclusion of transgender military personnel. The second directive was “that decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to Under Secretary Carson, who will make determinations on all potential separations (Department of Defense 2015). Each of these developments eventually culminated into one major victory. In 2016, the Pentagon lifted its ban on transgender troops serving openly in the military. As Carter announced in his brief, “effective immediately, transgender Americans may serve openly and they can no longer be discharged or otherwise separated from the military just for being transgender. Additionally, I have directed that the gender identity of an otherwise qualified individual will not bar them from military service or from any accession program” (2016). This announcement further eliminated barriers preventing able-bodied transgender Americans from serving in the armed forces. The announcement reversed any policies which differentiated transgender members from their peers. The goal was to prevent unequal treatment of military service members based solely on gender identity. Carter also discussed the results of a yearlong study by the RAND Corporation on the effects of the inclusion of transgender service members in the military. RAND concluded the health care costs of including transgender service memebers would represent “an exceedingly small proportion” of DoD’s overall health care expenditures (Schaefer et al., 2016). In his directive, Carter explained that the militaries of eighteen other countries allow transgender personnel to serve openly, including close U.S. allies like Australia, Israel and the United Kingdom. According to Carter, “based on its analysis of allied militaries and the expected rate at which American transgender servicemembers would require medical treatment that would impact their fitness for duty and deployability, RAND’s analysis concluded that there would be minimal readiness impacts from allowing transgender servicemembers to serve openly” (2016). Following this policy announcement, transgender people already serving in the military were able to do so openly and were no longer at risk of being involuntarily separated, discharged, or denied reenlistment or continuation of service based on their transgender status. Carter’s policy implementation plan promised that 90 days after the ban was lifted, the DoD would issue a commanders' guidebook for leading currently-serving transgender servicemembers as well as medical guidance to doctors for providing transition-related care to currently-serving transgender service members. Carter also explained that in the nine months following his announcement, commanders, medical personnel, operating forces, and recruiters would receive training on the new guidance. Carter concluded that within a year of his announcement, "[t]he military services w[ould] begin accessing transgender individuals who meet all standards – holding them to the same physical and mental fitness standards as everyone else who wants to join the military” (2015). These changes in the DoD’s policies regarding transgender eligibility for service marked what many had hoped would be a lasting victory in the civil rights and liberties of the LGBTQ

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community. Not everyone wanted to lift the ban, however, and the Obama administration’s policy changes were reversed by the Trump administration on July 26, 2017. Trump tweeted in a series of three posts that “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow… transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you” (2017). Approximately one month later, Trump issued a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security. “By the authority vested in me as President and...Commander in Chief...under the Constitution and the laws of the United States of America, including Article II of the Constitution, I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above” (The White House 2017). Trump then issued a directive to Secretary of Defense Matthis to determine how to address transgender troops currently serving openly in the military. Trump also called for the DoD to halt some transition-related healthcare. The Constitution grants the President authority to direct policy. However, this constitutional authority is separate from the constitutionality of the policies themselves. Presidents sometimes conflate their political rhetoric with legal instructions. If a policy is challenged, its constitutionality must be determined by the courts. Katherine Shaw writes in the Texas Law Review about how presidential speech should be interpreted by the courts. She cites DADT as an example of how presidential speech has been interpreted. Regarding the case Log Cabin Republicans v. Obama, Shaw writes that “the district court relied on a single presidential speech as support for the conclusion that, contrary to the representations made by the Departments of Justice and Defense, DADT did not advance national security interests” (319). In this case, the court used the President’s statements as admissions. The President is commander in chief of the military and the court used his admission to contradict the government’s assertion about potential national security and overall military readiness in DADT. Donald Trump’s announcement of the ban was met with multiple lawsuits questioning its constitutionality. GLAD (GLBTQ Legal Advocates and Defenders) is representing the plaintiffs in both Doe v. Trump and Stockman v. Trump. Lambda Legal and OutServe-SLDN, a network of LGBT military personnel, represent plaintiffs in Karnoski v Trump. All three cases were filed in federal trial courts by current and would-be service members. In each case, the courts blocked the Trump administration from enforcing its transgender ban. The Trump administration’s Department of Justice then asked the Supreme Court to review all three cases. For those opposed to allowing transgender service members, Trump’s ban was a victory. Secretary Mattis announced in response to Trump’s initial memorandum that after an extensive review of military service by transgender individuals, Mattis and a panel of senior military leaders and other experts determined that the prior policy adopted by Secretary Carter posed too great a

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risk to military effectiveness. According to Mattis, “Compelling behavioral health reasons require the Department to proceed with caution before compounding the significant challenges inherent in treating gender dysphoria with the unique, highly stressful circumstances of military training and combat operations” (2017). This contradicts the RAND study which was cited by proponents of the inclusion of openly transgender service members. Since that second memorandum, a petition for a writ of certiorari before the U.S. Supreme Court was issued by U.S. Solicitor General Noel Francisco on November 23, 2018. Karnoski v. Trump is currently pending. Following initial victories for transgender members of the military in the U.S. district courts, Francisco argued that the Supreme Court should step in immediately due to the risk that open transgender military service would create. Ordinarily, decisions made by the U.S. district courts make their way to appeals before being petitioned in the Supreme Court. Francisco argued, however, that the government could not afford to wait for the U.S. courts of appeals to issue rulings because the old policy poses “too great a risk to military effectiveness and lethality” (Howe 2018). Karnoski v. Trump was filed on August 28, 2017 in the U.S. District Court for the Western District of Washington to challenge Trump’s attempt to reinstate a ban on open service for transgender people. This case argues that the policy announced by Mattis was unconstitutional, the constitutional provisions in this case being the First and Fifth Amendments. According to the U.S. Supreme Court, the issue is “whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions” (2018). The plaintiffs include nine transgender individuals and three organizations. The individual plaintiffs are Ryan Karnoski, D.L., Connor Callahan, Staff Sergeant Catherine Schmid, Chief Warrant Officer Lindsey Miller, Petty Officer First Class Terece Lewis, Petty Officer Second Class Phillip Stephens, Petty Officer Second Class Megan Winters, and Jane Doe. Karnoski and Callahan both aspire to enlist in the military. Schmid, Muller, Lewis, Stephens, and Winters all currently serve openly in the military. Jane Doe currently serves in the military, but is not openly transgender. The organizational plaintiffs are the Human Rights Campaign and the Gender Justice League, organizations committed to fighting for the human rights of LGBTQ people (Karonski v. Trump). The initial decisions of the U.S. district courts have prevented the military from adopting the new policy proposed by Mattis. The military has been forced to maintain the Obama administration’s policy for nearly one year. The Trump Administration has acknowledged in its petition that “absent this [Supreme] Court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon. Accordingly, the government is filing this petition and two other petitions for writs of certiorari before judgment to the Ninth and D.C. Circuits.” According to Supreme Court rules, the “Court will grant certiorari before judgment ‘only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court’” (Constitution of

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the United States). The petition by Noel Francesco argues that the case satisfies this standard. According to this petition, the issue of this case is of imperative public importance because it involves “the authority of the U.S. military to determine who may serve in the Nation’s armed forces.” It also argues that immediate grant of certiorari is warranted to ensure the district court’s injunction is not in place for longer than necessary. Moreover, the petition argues that the district court decisions were wrong, the injunctions were overbroad, and the respondents’ constitutional challenges to the Mattis policy lacked merit (U.S. Supreme Court 2018). According to Cole and De Vogue, one reason for the petition is the consevative court. “Francisco has moved aggressively at times to get cases before a Supreme Court that is more solidly conservative with the addition of Justice Brett Kavanaugh'' (Cole and De Vogue 2018). What will happen next is unclear. As an article in Time explained, “the timing of the Administration’s effort to get the Supreme Court involved in the issues at an early stage could hardly be worse for Roberts and other justices who have sought to dispel perceptions that the court is merely a political institution, especially since the confirmation of Justice Brett Kavanaugh'' (Sherman and Gresko 2018). According to Amy Howe, a former editor of the SCOTUSblog, “the service members in the three cases are scheduled to respond to the government’s appeals on December 24; the justices are likely to announce in early to mid-January whether they will take up the cases.” Howe explains that petitions for certiorari before judgment are not granted often. However, the courts will consider the Trump administration’s request. Howe also notes that “because the three cases hail from different parts of the country, two of the requests go to Justice Elena Kagan, who handles emergency requests from California and Washington, while the third goes to Chief Justice John Roberts, who handles emergency requests from the District of Columbia'' (Howe 2018). This is not the first time the Trump Administration has asked the courts to interfere with the appeals process. In January, it petitioned the Supreme Court to fast-track cases challenging its plans to end DACA (Deferred Action for Childhood Arrivals). That request was denied. The reality is that the environment for the transgender community is hostile under the Trump administration. Despite recent victories under the Obama administration, citizens who identify as LGBTQ and wish to serve in the military continue to be at risk. As many efforts as the Obama administration made to increase inclusion for targeted individuals and protect them from discriminatory practices, the Trump Administration made strident efforts to deny those individuals basic freedoms and rights guaranteed under the U.S. Constitution.

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References Biden, Joe. “Remarks by the Vice President and Dr. Biden to the Human Rights Campaign Los Angeles Dinner.” Obama White House Archives, Office of the Vice President. March, 23. 2014. Carter, Ashton. "Statement by Secretary of Defense Ash Carter on DOD Transgender Policy.” U.S. Department of Defense Archived Transcripts. July 13, 2015. Carter, Ashton. "Department of Defense Press Briefing by Secretary Carter on Transgender Service Policies in the Pentagon Briefing Room.” U.S. Department of Defense Archived Transcripts. June 30, 2016. Cole, Devan, and Ariane De Vogue. "Justice Department Asks Supreme Court to Let Transgender Military Ban Take Effect." CNN, December 13, 2018. The Constitution of the United States. Article 28, Section 2101, Clause E. Department of Defense. Department of Defense Directive 1304.26, December 21, 1993. Department of Defense. Department of Defense Special Briefing from the Pentagon, July 22, 2011. Department of Defense. "Statement by Secretary of Defense Ash Carter on DoD Transgender Policy” July 13, 2015. Howe, Amy. Government returns to Supreme Court on military transgender ban, SCOTUSblog (Dec. 13, 2018, 6:56 PM). Karnoski v. Trump, 2:2017cv01297. US. District Court for the Western District of Washington (2018). Mattis, James, “Military Service by Transgender Individuals,” Memorandum for the President, February 22, 2018, Office of the Secretary of Defense. McThomas, Mary, and Robert J. Buchanan. "President Obama and Gay Rights: The 2008 and 2012 Presidential Elections." PS: Political Science and Politics 45, no. 3 (2012): 442-48. National Defense Research Institute. "The History of “Don’t Ask, Don’t Tell”." In Sexual Orientation and U.S. Military Personnel Policy: An Update of RAND's 1993 Study, 39-68. RAND Corporation, 2010. Raddatz, Martha. Interview with Chuck Hagel. "This Week with George Stephanopoulos," ABC News, Secretary of Defense Chuck Hagel: Military's Transgender Policy 'Continually Should Be Reviewed', May 11, 2014.

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Robson, Ruthann. "District Judge Holds Transgender Military Ban Subject to Strict Scrutiny." Constitutional Law Prof Blog (blog), April 14, 2018. Schaefer et al. Assessing the Implications of Allowing Transgender Personnel to Serve Openly. Santa Monica, CA: RAND Corporation, 2016. Shaw, Katherine. Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Tex. L. Rev. 71, 76 (2017). Sherman, Mark and Gresko, Jessica. "Trump Administration Seeks Quick Supreme Court Ruling on Transgender Military Ban." Time Magazine, November 24, 2018. Tadlock, B. (2014). Issue Framing and Transgender Politics: An Examination of Interest Group Websites and Media Coverage. In Taylor J. & Haider-Markel D. (Eds.), Transgender Rights and Politics: Groups, Issue Framing, and Policy Adoption (pp. 25-48). Ann Arbor: University of Michigan Press. Trump, Donald J. (@realDonaldTrump), Twitter (July 26, 2017, 5:55 AM to 6:08 AM). U.S. Supreme Court Review of Petition for Writ of Certiorari in Trump v. Karonski. Washington, 2018. The White House. Memorandum on Military Service by Transgender Individuals, 82 Fed. Reg. 41,319. Aug. 25, 2017. Wilson-Buford, Kellie. "Policing Sex and Marriage, 1976–2000." In Policing Sex and Marriage in the American Military: The Court-Martial and the Construction of Gender and Sexual Deviance, 1950–2000, 201-34. Lincoln: University of Nebraska Press, 2018.

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SUBMERGED STATE: HOW THE OFFICE OF CIVIL RIGHTS TRANSFORMED TITLE IX BY PAIGE DEAN Title IX, passed by Congress in 1972 as part of the larger Education Amendments, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” (Veracity Media 2020). This law was designed to do away with the institutional barriers that women faced in education and include sex as a protected class category. Today, Title IX has been expanded to encompass issues its authors couldn’t have imagined and its enforcement agency, the Office for Civil Rights (OCR), has changed the landscape of gender in education regulation forever. In this paper, I discuss the relationship between regulations and the formal features of government, the influence of intermediary institutions on the regulation of athletics under Title IX, and how these factors have had a detrimental impact on this area of policy. In 1946, Congress passed the Administrative Procedures Act (APA), a law that was intended to establish and formalize the process by which federal agencies regulate. It outlined three steps agencies needed to take to create a new law: give notice that it would publish the new rule in the Federal Register (the official journal of the federal government), allow a time period for the public and experts to comment on it, and publish the new rule in the Federal Register. Within 60 days, the rule would become real and enforceable law. This process, commonly known as “Notice and Comment,” is how the OCR is legally mandated to create regulation. Congress had also added an additional constraint on Title IX rules, saying that “no such rule, regulation, or order shall become effective unless and until approved by the President” (Melnick, 42). However, the OCR has only ever gone through this full process once, in 1975, when it created its initial Title IX rules. Every additional rule and regulation it has issued since has been in the form of an interpretation, clarification, ‘Dear Colleague’ letter, or court decision deferring to the agency. The agency has repeatedly said that its numerous ‘Dear Colleague’ letters have not changed federal regulation, claiming that all significant changes in policy on athletics, sexual harassment, and transgender rights have been “nothing new” (Melnick, 45). Additionally, the practice of “institutional leapfrogging” has only allowed this problem to persist. According to Melnick, institutional leapfrogging is when courts and federal agencies each take steps beyond each other to change and expand regulation. For example, when the OCR rules come under scrutiny, a circuit court might defer to the agency and interpret an agency’s previous clarification or even adopt a broader understanding of what the agency meant. This convoluted process can be considered part of the “submerged state” because unlike a Supreme Court case, court decisions like these can easily fly under the radar of the public even as they can have massive consequences for society (Mettler, 9). The fact that the OCR is tasked with the important job of outlawing discrimination in schools begs the question: by what authority does the OCR issue these rules? If almost none of its rulings on athletics have passed through the proper legal channels, are

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they legally binding? Are schools required to follow any of them? The OCR is part of the Department of Education, which usually falls under the purview of the executive branch. The OCR enforces Title IX, which was written and passed by Congress. Yet the OCR relies on the courts for a majority of its enforcement power and for judicial deference to its guidelines. Thus the relationship between the content of the OCR’s regulations and the structure of power in our government is complicated and flawed. There is no clear-cut way to trace accountability or where the OCR gets its authority. As Senator James Lankford (R-Okla.) commented, the OCR has “sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objection to the...policies if given an opportunity” (Melnick, 44). The OCR’s actions, then, could set a dangerous precedent within other federal agencies. Important rules that govern wide swathes of American life are being put into effect without being subject to accountability, input or oversight. This huge disparity between what should have been done and what the OCR has done may have contributed to the disconnect in Title IX regulation of athletics. Title IX is based on the belief that “denying women and girls equal educational opportunity is no more acceptable than denying such opportunity to racial minorities” (Melnick, 41). However, race and sex are not analogous and the decision to use the same regulatory framework for Title IX has contributed to some of its shortcomings. Furthermore, although the original Title IX law did not specifically mention athletics, Title IX has grown to become almost synonymous with athletic opportunity in the public mind. This is likely because athletics is the only place in modern society where the maxim “separate but equal” still applies. Unlike the academic sphere, in athletics it is not enough to eradicate institutional barriers or discriminatory policies. With athletics, physical differences between the sexes have to be acknowledged. Therefore, the question for regulators is: how do we measure equality? There are two ways to define equality in athletics, the relative interest standard and the parity standard. According to the relative interest standard, equal opportunity is achieved when the percentage of female undergraduates at an institution who are interested in playing sports determines the amount of resources the program receives and the number of athletes it supports. According to the parity standard, however, equal opportunity for women is achieved when the ratio of female athletes to female undergraduates at a school is the same as the ratio of male athletes to male undergraduates. The OCR originally enforced Title IX under the relative interest standard under its 1975 APA-processed regulations and held that “schools must work effectively to accommodate the interests and abilities of both sexes.” It further outlined this standard in its 1979 interpretation under the Three-Part Test, which clarified how a schools’ compliance with Title IX would be measured. However, the Cohen vs. Brown University case saw a shift in how courts interpreted the ambiguous language of the Three-Part Test, especially its third prong. The third prong of the test states that compliance will be met when “the interests and abilities of the members of [the underrepresented] sex have been fully and effectively accommodated” (Melnick, 99). Brown University, with its long history of promoting women’s athletics and high average of female varsity athletes, believed it had met the terms of Prong Three. However, in 1991 Brown was facing

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financial problems and two men’s teams and two women's teams were reduced to club sport status in the ensuing budget cuts. When the issue was brought to court, the case hinged on the exact meaning of Prong Three. Brown argued that the OCR’s 1975 and 1979 rules meant that the abilities and interests of both sexes had to be “equally effectively accommodated” and showed evidence that female undergraduates at Brown simply had less interest in playing varsity sports (Melnick, 112). The courts, however, decided to adopt a literal reading of Prong Three, arguing that the lack of interest shown by female Brown students was simply a result of a history of discrimination and socially constructed stereotypes. As such, they argued that a survey could not be deemed evidence of compliance and the relative interest standard was, in practice, overcomplicated. Parity was further solidified by the OCR’s 1996 ‘Dear Colleague’ letter, which described Prong One as the only “safe harbor” for schools. According to the letter, compliance is met when “opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments” (Melnick, 99). This decision resulted in requiring universities like Brown to spend more money on female athletic programs and recruitment in an effort to achieve the parity standard. Over the past decade, the OCR has also turned its focus to public high schools to create more regulations with the intent to establish parity and combat socially constructed norms. This places undue pressure on schools in the form of broad mandates, fear of expensive investigations and settlements, and increased spending on athletic programs (Melnick, 128). This shift in the standards of equal opportunity exemplifies institutional leapfrogging, where a court relies on an agency's previous guidelines and then expands the regulatory demands while claiming that they have added nothing new to the existing statute. It’s worth noting that the ambiguous language of the Three-Part Test and its problematic underlying arguments could have been adjusted had the OCR gone through the Administrative Procedures Act with its 1979 interpretation. The relationship between the content of the OCR’s regulations and the formalistic features of government is deeply flawed and convoluted. The OCR neglects to follow the legal procedures for rulemaking, which deprives the agency from receiving critical input from experts and the opportunity to examine possible long-term consequences. The OCR has no real enforcement power of its own and therefore relies on the authority of the courts to give weight to its guidelines. The courts practice judicial deference. Thus the regulatory regime is expanded and shifted in ways that impose outsized and impractical demands on the regulated party based on flawed arguments about the nature of their very goal: equality. In practice, this flawed relationship has placed a broad mandate on the shoulders of universities and encouraged indiscriminate increases in spending on women’s athletics programs at the expense of projects benefiting libraries, labs and admissions opportunities for non-athlete students (Melnick, 135). The OCR and the courts have ignored the central question of what, exactly, the relationship between athletics and education should be and whether enforcing the parity standard of compliance truly benefits female athletes and students at all. Some argue that procedures like the APA are mere formalities and the important thing is that the OCR establishes good policies. In response, I argue that these procedures are required for

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a reason: the preservation of our democracy. Our legislative, judicial and executive branches have set up procedures like the APA to create a flow of power in the federal government that is subject to separation of powers and checks and balances. Without these vital components of our democracy, we would fall into tyranny. Additionally, it's also possible to argue that OCR has not done the right thing when it comes to creating equal opportunities for women in athletics. Athletics have become a major focus of Title IX regulation, at the expense of female undergraduate education. The growth of the intercollegiate sports behemoth has led to increased corruption, racial disparities, increased sexual harassment, rising tution costs, and a negative social and academic culture among athletes. The weight of these costs is mostly borne by the very women Title IX was designed to help (Melnick, 135). As with any issue, Title IX regulation of athletics has attracted the attention of many interest and advocacy groups, from women's groups, athletic organizations, lawyers associations, and the media. Many people associate Title IX regulation with sports and this assumption guides public opinion on the issue. A large contributing factor to the complexity of this issue is the uniqueness of the American college athletic system. College sports have become a huge part of college life as well as huge revenue streams for participating schools. This has created many parties with competing interests, each trying to protect their organization, profit margin, and sports. The growth of women’s athletics has created more opportunities for women but also more possibilities for associated advocacy groups to influence the regulatory process (Melnick, 84). In addition, all Title IX regulation focuses on varsity athletics, an incredible narrow focus encompassing very few students. This excludes club sports, intramural sports, and personal fitness programs, all of which are perhaps more compatible with a demanding academic schedule and female undergraduates’ levels of interest (Melnick, 140). At times, the media has also worked on the sidelines as part of the OCR’s enforcement strategy. Today, universities being investigated by the OCR or sued by a private party are more likely to come to an expensive settlement or agree to outsized and impractical measures such as increasing teams and spending on women’s programs. The threat of a long and complicated investigation or lawsuit, coupled with negative exposure in the media, can be an effective way for the OCR to enforce or even go beyond its Title IX rules. Today's media landscape, fraught with ideological bias and an eagerness to profit off the slightest hint of a scandal, is a major concern for school administrators looking to protect their institutional reputations. This effect can create a phenomenon of overcompliance as schools race to stay in the good graces of the OCR and the media. A pivotal moment for athletic advocacy groups came in 1992 when the Supreme Court decided the Franklin vs. Gwinnett County Public Schools case. This case allowed private individuals to bring cases against schools whom they alleged had violated Title IX and granted them the ability to receive monetary damages as part of a settlement. This essentially allowed advocacy groups and public interest law firms to enter the regulatory process, enabling lawyers to expand the number of cases they could take on related to Title IX athletics. Attorneys could then use the ensuing payouts to bankroll the next case, creating a snowball effect of lawsuits. Franklin

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had the unintended consequence of shifting most of the OCR’s enforcement power to the courts and giving advocacy groups undue influence over policy. Another example of advocacy groups influencing policy came during the Bush Administration's efforts to weaken the parity standard and create a more reasonable interpretation of the Three-Part Test. The Commission on Opportunity in Athletics pushed for the creation of surveys to measure student interest in varsity athletics. This initiative was shot down by the National Women's Law Center and the Women’s Sports Foundation on the basis that such surveys fail to measure female students’ “potential interest” (Melnick, 122). The NCAA, primarily interested in increasing its sponsored events and promoting its revenue streams from basketball and football, worked hard to promote female athletics and thwart any attempt to moderate the OCR’s regulations. These groups developed broad coalitions to oppose any efforts to deviate from the standards set down by the OCR and the courts that adhered to the parity standard. These groups have managed to overcome a collective action problem, effectively preventing any re-examination of Title IX athletics policy. It is in their interest to increase the expansion of competitive college varsity programs. It is much harder for groups who recognize the issues with the current athletics system to propose new regulations than it is for powerful advocacy groups to defend the status quo. The disconnect between the substance of regulation of Title IX athletics and the formal power structure of government has created a number of unintended consequences and opportunity costs. The switch in the definition of equal opportunity from relative interest to parity has had a negative impact on education and imposed new costs on female athletes. In the past few decades, the Title IX regulation of athletics has been an unnecessarily complicated venture, losing sight of its true goal and falling victim to the boundless appetites of profit-seeking interest groups. Much of this could have been avoided had the Office for Civil Rights gone through the proper regulatory steps and considered the structure of our democracy.

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References Melnick, R. Shep. The Transformation of Title IX: Regulating Gender Equality in Education. Brookings Institution Press, 2018. Mettler, Suzanne. “Chapter 1: Governance Unseen.” In The Submerged State: How Invisible Government Policies Undermine American Democracy, 8–30. University of Chicago Press, 2011. Veracity Media. “Hands Off IX.” Know Your IX, 14 Aug. 2020. www.knowyourix.org/college-resources/title-ix/

Vol. 8 Fall/Winter 2020 Issue

Articles inside

A Tale of Two Administrations: Transgender Military Rights, 2008 2020

Investigating Histories of Gender Discrimination in U.S. Immigration Law

Religious Tolerance in the Law: The Usage Of Sharia’a Law in U.S. Courts

The Threshold of Humanitarian Intervention for Religious Persecution

Increasing the Representation Of Low Income High Achievers at Elite Colleges

Stripping Democracy to Raise Test Scores: A School Receivership Case Study

An Open Letter to Boston's K 12 Schools: The Need for Ethnic Studies

A Judicial Framework to Abolish the Death Penalty in the United States

Reimagining Criminal Justice: The Restorative Transformative Model

Pandemic History Lessons: What the Past Can Teach Us About Covid 19

The Hidden Epidemic: Covid 19 and Domestic Violence

Education During a Pandemic: California Public Schools and Technology