Wellesley College Pre-Law Society Law Review Journal Fall 2019 by Wellesley College Pre-Law Society

Volume 8

The Pursuit of Justice

Wellesley College Law Journal Fall 2019

Table of Contents Letters From The Community Letter from the Presidents

Doris Li ’20 & Kristine Kwon ’20 Letter from the Editors

Katie Twiss ’21 & Helena Zeng ’20

Articles Reform of Law for Saudi Arabian Women: A Start, Not a Win

Jordan Synodi ’21 Looking Beyond the Courts: Analyzing and Resolving the Impacts of Gerrymandering

on American Political Culture Hollis Rammer ’20 Prosecutors in Black Robes: The Troubling Lack of Professional Diversity Among

Judges Katherine Leary ’22 Op-Ed: The Haunted Voting Booth

Hayley Moniz ’22 Race-making through Incarceration and Policing

Kalyani Saxena ’20 Taste and Other Unequal Things

Kalyani Saxena ’20

P.M. and C.M. v T.B. and D.B.: Framing Surrogacy Contracts

Faith Davenport ’20 Nischan v Stratosphere Quality, LLC: Workplace Harassment & Employer Liability

Faith Davenport ’20 “It’s Not Disruptive”: The Legal Rhetoric of Queer Legitimacy

Katherine Thomas ’20 Environmental Racism

Katie Twiss ’21 Many Variables, Disastrous Impacts: An Issue Diagnosis and Prescription of Red Tide

Hope D’Erasmo ’21 The Flaws of Market-based Freedom: An Argument for Anti-discrimination Legislation 71 Helen Redmond ’21 Making a Miracle: The Passage of the Every Student Succeeds Act

Kate Van Hecke ’22 Considering an American Legacy of Economic Inequality

Kate Van Hecke ’22

Letter from the Presidents As Presidents of the Wellesley College Pre-Law Society, we are honored to uphold and further our mission in administering to Wellesley’s legal community. The Wellesley College Law Journal is one of our largest projects every semester, and we are thrilled for its 8th publication this fall. We would like to thank all of the student contributors, as well as our Editors Katie Twiss and Helena Zeng, for their efforts in compiling these articles and creating the final product. Over the past semester, Pre-Law Society has hosted a variety of events to guide students through the law school application process as well as legal career paths. These efforts included our bi-annual “Tea With a Lawyer,” wherein a panel of alumnae working in legal fields returned to Wellesley to tell us about their experiences; a TestMasters LSAT workshop; and bonding events for Society members. In collaboration with Career Education and with support from the Alumnae community, we also piloted our “Ramen & Resumes” event to help students prepare application materials for law school and legal positions. Finally, we worked closely with our Career Education advisor Emma Cutrufello to host a Q&A event with Lauren Majchrowski, Director of Admissions at the University of Connecticut Law School. Next semester, the Pre-Law Society will continue to work closely with Career Education and the Alumnae Network to spark discussions, make connections, and educate students about opportunities in the legal field. We also hope to increase our general membership, which reached an all-time high of 142 members this semester, and expand our readership for this Law Journal. On behalf of the Pre-Law Society Executive Board, we extend our thanks to Wellesley Career Education, Emma Cutrufello, 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, Doris Li ’20 and Kristine Kwon ’20 Fall 2019 Co-Presidents

Letter from the Editors Dear Reader, We are thrilled to be the first to say (or rather, write): welcome to the Wellesley College Pre-Law Society Law Journal, Volume 8! Published twice a year, the Wellesley College Law Journal is the premiere location for students, professors, and alumnae to publish their thoughts on human rights, politics and policy, as well as general law. The Journal is an entirely student-run organization. All articles are selected, edited and published by the Review's Editor(s), elected by the Society on a yearly basis. This semester, the theme of the Journal is The Pursuit of Justice. It has been an absolute joy to read these 15 pieces exploring reproductive, environmental, international, and other approaches to justice and bring them into conversation with one another. We hope these papers spark your curiosity and encourage you to look at the world a little differently, as they have for us.

Happy Reading!

Katie Twiss ’21 & Helena Zeng ’20 Co-Law Journal Editors, Volume 8

Reform of Law for Saudi Arabian Women: A Start, Not a Win Jordan Synodi ’21 For over forty years, the Saudi Arabian government banned women from doing what is considered an ordinary part of American life: driving. It wasn’t until June of 2018 that the ban was lifted by Crown Prince Mohammed bin Salman (“Mohammed Bin Salman | Biography, Education, & Facts | Britannica.”). The Crown Prince, known colloquially as MbS, took office in June 2017 and has acted as the de facto ruler on behalf of his father, King Salman bin Abdulaziz Al Saud. At just thirty-four years old, the newest leader of this Islamic state shares a vast interest in remodeling Saudi Arabia, especially social restrictions. As the birthplace of Islam around 570 A.D., Sharia law is instituted to an extreme through the state; this interpretation of law was the underlying reason why women were not allowed to drive (“Saudi Arabia Will Finally Allow Women to Drive.”). Respected members of the Islam world, known as Sheikhs (‫)ﺦﯿﺸﻟا‬,have supported the strict interpertation of Sharia law. Without Sharia law, Islam as a whole cannot be understood; the word Sharia means “path,” and is understood to be the path to salvation (March). Therefore, Muslims have incorporated sacred texts, such as the Quran (‫)ﻧﺂﺮﻘﻟا‬and the Hadiths (‫)ﺚﯾﺪﺤﻟا‬,into daily life. The Quranic text account for the messages the prophet, Mohammad (‫)ﺪﻤﺤﻣ‬,heard when God(‫ )ﷲا‬spoke to him where as the Hadiths are the recordings of Mohammad sayings by his followers. Thus, the question arises; how does this connect to women and driving? Well, the answer is not as simple as you think. These respected scholars and Sheikhs decided to interpret a section or phrase within one of these sacred texts and add their interpretation to the meaning. It should be noted that within the scripture, there is no direct textual evidence claiming driving will divert women off the path towards salvation. Ever since the law banning women operating motor vehicles in 1957 went into effect, women have slowly been protesting back. The spark began in the 1990’s, when forty-seven women took to the roads of Riyadh in a demonstration against the law. Eventually, these women were stopped by the police and suffered serious consequences such as no international travel for a year, and imprisonment (“Saudi Women Reunite To Remember Driving Protest.”). These women were given the nickname ‘The Drivers’ (‫)ﻦﯿﻘﺋﺎﺴﻟا‬, and were scorned by the government.

However, most of the female protestors did not care what the government thought of them. Aisha al Mana, a businesswoman who took part in the driving protest claimed “I think it was worth it, because we raised the issue of the women in Saudi Arabia and the consciousness about it (“Saudi Women Reunite To Remember Driving Protest.”).” Spreading awareness and gaining attention towards this issue was the main goal of the group. About a decade later, the Arab Spring once again sparked the debate about women on the roads. However, still no success in the quest for this basic human right. Beginning in 2016, the idea of women on the roads was reintroduced when Crown Prince Mohammed bin Salman stated he “is not convinced about women driving...the topic is not about Islam but about cultural norms (“Saudi Arabia’s Crown Prince Has Just Announced the Country Is ‘not Ready’ for Women Drivers.”).” Ironically, the statement MbS made contradicts what Saudi Arabia is: the birthplace of Islam. The state and religion of Islam are deeply intertiwned, and only a year later did the government finally allow women to obtain licenses to drive. Manal al-Sharif, a Saudi women's rights activist who was instrumental in the women to drive movements expressed her joy that “the rain begins with a single drop” (Spark), meaning this is a start but not a win for Saudi Arabian women.

Works Cited March, Andrew F. “Sources of Moral Obligation to Non-Muslims in the ‘Jurisprudence of Muslim Minorities’ (Ftqh al-Aqalliyyāt) Discourse.” Islamic Law and Society16, no. 1 (2009): 34–94. “Mohammed Bin Salman | Biography, Education, & Facts | Britannica.” Accessed November 18, 2019. https://www.britannica.com/biography/Mohammed-bin-Salman. “Saudi Arabia’s Crown Prince Has Just Announced the Country Is ‘not Ready’ for Women Drivers,” The Independent. April 28, 2016. http://www.independent.co.uk/news/world/middle-east/saudi-arabia-is-not-ready-forwomen-drivers-says-deputy-crown-prince-mohammed-bin-salman-a7004611.html. “Saudi Arabia Will Finally Allow Women to Drive.” The Economist,September 27, 2017. https://www.economist.com/middle-east-and-africa/2017/09/27/saudi-arabia-will-finallyallow-women-to-drive. Spark, Laura Smith “What You Need to Know about Saudi Women Driving.” CNN. Accessed November 19, 2019. https://www.cnn.com/2018/06/22/middleeast/saudi-women-driving-ban-end-intl/ index.html. “Saudi Women Reunite To Remember Driving Protest.” NPR.org. Accessed November 19, 2019. https://www.npr.org/templates/story/story.php?storyId=97541372.

Looking Beyond the Courts: Analyzing and Resolving the Impacts of Gerrymandering on American Political Culture Hollis Rammer ’20 Gerrymandering, or the process of drawing political districts to entrench the power of one party, has a long and impactful history in American politics. However, much of our analysis of the issue tends to focus on the immediate impacts of the practice. For example: how will Republican-redrawn maps impact the next midterm election? How do new maps change the strategies that candidates and parties pursue? While these questions are important for both voters and political organizers, the impacts of politically-motivated redistricting have had a much more structural, fundamental impact on our political system. Additionally, gerrymandering is an example of the dangers of strict dual federalism. Many of the solutions proposed to combat partisan redistricting have failed because courts and the federal government are unwilling to get involved in what is widely considered to be a fundamental right of states. While a separation of powers is an inherent and essential part of America’s federal structure, gerrymandering exhibits the danger of too much separation: a detrimental practice is allowed to persist because levels of government are unwilling or unable to interact to stop it. Thus, courts such as the Supreme Court are not the best way to resolve the issue. Instead, a solution that incorporates both state and federal governance must be proposed, as both levels of government are impacted by partisan mapmaking. In order to understand the contemporary impacts and methods of gerrymandering, it is first important to examine the historical development of the practice. It may seem that gerrymandering is a wildly unregulated practice today, but in the past, it was even more uncontrolled. In the 19th century, states were essentially allowed to redistrict as much and as frequently as they wanted. This led to incredibly volatile voting maps, and thus, more volatile electoral outcomes. For example, in every year between 1862 and 1896 except for one, at least one state redrew its congressional maps. Ohio led the pack, redistricting six times in the twelve years between 1878 and 1890 (Engstrom 8). The rationale for nearly continual redistricting varies. Electoral mobilization was high and elections were often won on thin margins. Additionally, fewer people were eligible to vote—opportunities for increasing voter turnout

were limited as there were simply less people to reach out to that did not already intend on voting. This meant that parties and candidates had to look for tools beyond voter mobilization to increase their electoral chances, and the complete lack of regulation on the issue made redistricting a tempting tool (Engstrom 9). It may be hard to conceptualize what impact state redistricting 150 years ago has to do with our political system today, but this redistricting impacted both the individual, influential pieces of legislation passed during this time and the evolution of American political culture. Late 19th century gerrymandering was particularly potent in the American South. Maps were redrawn to help bring Democrats to power, allowing them to effectively undermine post-Civil War Reconstruction policy. In particular, Democratic majority’s limitation of African American suffrage has had long lasting impacts on political representation, participation, and Southern political culture that can still be felt today (Engstrom 11). Beyond this, gerrymandering at this time contributed to the growing partisanship in the House of Representatives that we see today. Republicans narrowly won a House majority in the 1888 election, with the pivotal seats coming from highly partisan redistricting in Pennsylvania a few months prior to the election. The new Speaker of the House passed parliamentary rule changes that allowed the majority party to essentially limit the ability of the minority party to obstruct and delay specific pieces of legislation. These parliamentary changes are referred to as Reed’s Rules, and the Rules are often seen as a turning point in American Congressional history (11-12). Limited powers for the minority party in Congress mean that political parties have even more of a desire to secure a majority. Thus, Congressional elections become nationalized—the Democratic and Republican parties have a strong incentive to focus resources on swing states or candidates in jeopardy at the expense of others. Candidates have more of an incentive to toe the party line and focus on appealing to the party to win support and a share of these resources, potentially at the expense of local constituencies or issues (Herrnson 87 & 91). While the counterfactual is difficult to imagine, the passage of Reed’s Rules signify the ability of gerrymandered districts to directly impact the passage of important legislation. Despite the fact that the impacts of gerrymandering can be seen throughout our nation’s history, means of preventing it have been largely ineffective. One of the main tools by which

activists, voters, and in some cases political parties, have attempted to use to combat it is the courts. However, a recent Supreme Court case provides a compelling example of the unwillingness or inability of courts to effectively intervene on this issue. In 2010, Republicans took control of the Wisconsin state legislature and won the governorship, electing Scott Walker with 52% of the vote (Bosman). One year later, the Republican-majority legislature proposed a statewide redistricting that nearly immediately was criticized as being incredibly partisan. The plan, formally known as Act 43, resulted in the Democratic party winning 39 out of 99 state assembly seats in 2012, despite receiving 51% of the vote. These results were further incriminated by the 2014 election, in which Republicans won 51% of the vote but received 63 assembly seats (O'Brien). These election results prompted twelve Democratic voters to file a legal challenge to the Act, which would eventually be sent to the Supreme Court as Gill v. Whitford. Plaintiffs argued that the Act represented unconstitutional partisan gerrymandering, and that it systematically dilutes the power of Democratic voters and the state Democratic party as a whole (“Gill v. Whitford.” Oyez.). It is important to note that the Supreme Court has no precedent for mandating or limiting partisan redistricting—it has never ruled that gerrymandering is illegal, and has generally elected to sidestep the issue. The Supreme Court ruling in Gill v. Whitford was that the plaintiffs had not done enough to prove the individual harms of Act 43. Essentially, the plaintiffs had focused too much on the state and party implications of the practice, and not enough on how the drawing of individual districts impacts voters in that district. Instead of simply dismissing the case, however, the Court remanded to give the plaintiffs more time to prove these individual harms ("Gill v. Whitford, 585 U.S. ___ (2018)."). The impact of the ruling is mixed. While it is notable that the Court did not outright dismiss the case, it is unclear what its future will be. Will the Supreme Court end their precedent of nonintervention on partisan gerrymandering by ruling on the legality of the practice, or will the judiciary continue its indecisiveness on the issue? Gill v. Whitford is only one of a recent series of cases regarding gerrymandering to reach high

levels of US courts. However, there are two primary reasons why the judicial system is not the best solution. First, the judiciary has had little success adjudicating these issues, particularly recently. Perhaps most impactfully, in a 2018 case regarding gerrymandering in North Carolina

named Rucho v. Common Cause, Chief Justice Roberts argued in the majority opinion that partisan disputes over redistricting are “non-justiciable,” as courts are unable to come up with fair standards by which to judge the partisanship of legislative maps (Roth). This verdict combined with past court attempts to sidestep issue send a clear message: even the justices on America’s highest courts do not know how to handle gerrymandering. Secondly, as mentioned by Chief Justice Roberts, ruling gerrymandering to be unconstitutional is only half the battle. What would fair mapmaking even look like, and who would enforce it? Would state-level governments maintain the power to redistrict, or would legislative mapmaking become nationalized? The courts do not hold the answers to these questions, and thus they are not the best way forward. One promising solution to gerrymandering would be a federal mandate that states must use independent redistricting commissions to redraw their maps. In the status quo, which parties actually redistricts varies from state to state. Lawmakers are responsible for the creation of both congressional and state level political districts in most states. However, a growing number of states are using independent commissions for their maps. The committees are generally made up of members that are neither lawmakers nor public officials, and who are selected by an independent, nonpartisan organization ("Who Draws the Maps? Legislative and Congressional Redistricting."). Other states, such as California, utilize a hybrid committee model consisting of lawmakers from both parties as well as nonpartisan Representatives ("Number of States Using Redistricting Commissions Growing."). This solution would promote a mixed federalist solution—although the commission would be mandated into existence by the federal government, states could still each appoint their own members and maintain control over their districting. A solution involving both the federal and state level governments is key to resolving the issue of partisan gerrymandering, as it is an issue that impacts elections and representation on both local and national levels. Gerrymandering is not a new phenomenon, nor is it a partisan issue. Both parties have used the redrawing of legislative maps to their advantage, and have impacted the development of US political culture and congressional polarization in the process. A historical view of gerrymandering with a particular focus on the late 19th century is key to understanding the

contemporary manifestation of the issue, as well as to developing solutions. Despite the fact that gerrymandering has historically fallen under the purview of state rights, a fact that has made the Supreme Court hesitant to intervene, it is an issue with clearly national implications. Thus, a dual federalist, state-by-state solution will never solve the problem. A solution mandated by the courts will also be ineffective, as the judiciary demonstrably does not have the means nor the will to provide a workable alternative to partisan maps. In order to effectively combat gerrymandering, the federal government must work with state legislatures to develop common sense guidelines for independent redistricting commissions.

Works Cited Bosman, Julie. "2010 Election Results: Wisconsin." The New York Times. Engstrom, Erik. Partisan Gerrymandering and the Construction of American Democracy. University of Michigan Press, 2013. "Gill v. Whitford, 585 U.S. ___ (2018)." Justicia: US Supreme Court. Last modified 2019. “Gill v. Whitford.” Oyez. Accessed November 19th, 2019. Herrnson, Paul. "The Parties Campaign." In Congressional Elections: Campaigning at Home and in Washington. CQ Press, 2004. "Number of States Using Redistricting Commissions Growing." Associated Press. Last modified March 21, 2019. O'Brien, Brendan. "Court Says Republican Gerrymandering in Wisconsin Was Unconstitutional." Reuters. Last modified November 22, 2016. Roth, Zachary. "The Supreme Court Won't Stop Partisan Gerrymandering. Now What?" Brennan Center for Justice. Last modified June 28, 2019. "Who Draws the Maps? Legislative and Congressional Redistricting." Brennan Center for Justice. Last modified January 30, 2019.

Prosecutors in Black Robes: The Troubling Lack of Professional Diversity Among Judges Katherine Leary ’22 The need for increased diversity in all professions has become an important rallying cry in modern America. Within the law, the call for increased racial, ethnic, religious, and gender diversity is becoming widespread. However, there is one particular lack of diversity that is far less discussed, and it affects an enormous number of defendants in this country - the lack of professional diversity in judges. Specifically, judges are disproportionately former prosecutors, and former criminal defense lawyers are vastly underrepresented. When judges are former prosecutors, they look at defendants through that perspective, honed through years of striving for conviction over anything else. They don’t undergo a miraculous shift in perspective when they put on a black robe. According to Kyle Barry, Director of Justice Programs for the Alliance for Justice, it is only natural that, “Judges bring their life experience and professional experience, which informs their perspective, … to the bench (Tolan).” Thus, it is very concerning that one perspective is so over-represented in our judiciary. This lack of professional diversity is seen at every level of our judiciary. Starting at the highest court in the land, the Supreme Court hasn’t had a former defense lawyer since Thurgood Marshall’s retirement over 25 years ago (Lind). Meanwhile, nearly half of the current justices - 4 out of the 9 - have been former prosecutors (“Current Members”). If time spent working for the United States Department of Justice is included, the number rises to 6 out of 9. As for the federal judiciary as a whole, the Cato Institute’s recent study on the professional diversity of federal judges found the ratio of former prosecutors to former defense attorneys to be 4 to 1 (“Are a Disproportionate Number of Federal Judges Former Government Advocates?”). If all judges who acted as advocates for the government in their legal career are included, the ratio is a staggering 7 to 1. This lack of professional diversity affects judges across the ideological spectrum and the United States. For example, while President Obama’s judicial nominees were notedly more demographically diverse than those who came before them, there was still an enormous disparity in the professional diversity of his nominees, as just 14% of his nominees had worked as public defenders, while 41% had worked as prosecutors (Tolan). This disparity also exists at the state

level, as only 15% of state Supreme Court justices have had experience as public defenders, while 33% have had experience as prosecutors. So why has this occurred? Well, one possible reason is that a former prosecutor is considered less controversial than a former public defender and the system supposedly “rewards people ... who don’t do controversial things (Lind).” Public defenders often have experience defending clients who are accused of serious, violent crimes. Even though this is simply part of their job, it opens them up to attacks about whether they are “soft on crime”. In addition, criminal defense lawyers spend a vast amount of time defending some of the poorest and most marginalized members of society, but this is rarely seen as a positive reason for a judgeship in the same way that prosecutors' claims of upholding law and order are. Moreover, prosecutors who become judges would likely view their professional background in a favorable light and would encourage fellow prosecutors who are seeking to become a judge. This strong network of former prosecutors turned judges doesn’t exist for defense lawyers because there are so few of them to begin with. It is important to note that a judge’s background as a former prosecutor is not a guarantee that they will always be biased towards the prosecution. For example, many of the Supreme Court cases that expanded defendants’ rights were decided by Chief Justice Earl Warren’s court, who was himself a former prosecutor (Lind). “Once a prosecutor, always a prosecutor” is not always true. But “not always true” isn’t enough to guarantee a diversity of perspective and opinion among our judiciary. The call for increased diversity is based on, among other principles, the idea that diverse backgrounds means diverse perspectives. Our experiences in life naturally affects our perspectives. That is just as true and important when it pertains to professional diversity in judges. Equal justice under the law should mean an equality in perspectives from our judges. Unfortunately, a vast number of our current judges have perspectives that are unsympathetic toward defendants because of their professional history. Meanwhile, lawyers who have spent their careers advocating for the marginalized and disadvantaged are vastly underrepresented on the bench. It certainly won’t be easy to fix this disparity, but helping and supporting criminal defense lawyers in seeking elected judgeships, and raising awareness about the disparity to

encourage the nomination of more criminal defense lawyers to aâ&#x20AC;&#x2039;ppointed judgeships, would go a long way towards making our judiciary more balanced. After all, when all we have are prosecutors in black robes, our judicial system isnâ&#x20AC;&#x2122;t fair for all those who demand justice.

Works Cited “Are a Disproportionate Number of Federal Judges Former Government Advocates?” Cato Institute, 23 Sept. 2019, https://www.cato.org/publications/studies/are-disproportionate-number-federal-judgesformer-government-advocates#why-it-matters. “Current Members.” Home - Supreme Court of the United States, https://www.supremecourt.gov/about/biographies.aspx. Lind, Dara. “There's Been No Criminal Defense Lawyer on the Supreme Court since 1991. That's a Problem.” Vox, Vox, 22 Mar. 2017, https://www.vox.com/2016/3/28/11306422/supreme-court-prosecutors-career. Tolan, Casey. “Why Public Defenders Are Less Likely to Become Judges-and Why That Matters.” Splinter, Splinter, 9 July 2018, https://splinternews.com/why-public-defenders-are-less-likely-to-become-judges-a1793855687.

Op-Ed: The Haunted Voting Booth Hayley Moniz ’22 As of 2010, an estimated nine million, two hundred and sixty-one thousand (9,261,000) adults live with a current or prior felony conviction in the United States. Nine and a quarter-million Americans in and out of prison press on knowing they are ineligible for public housing and food stamps. They are subject to job discrimination. Most importantly, they are barred from voting for the rest of their life in some places. Each state handles the restoration (or permanent disenfranchisement) of voting rights for convicted felons differently, but 32 states have placed institutional barriers on the backs of felons that make their path to re-enfranchisement tumultuous, or even impossible (“Felon Voting Rights”). The refusal of those 32 states to not immediately and automatically reinstate the voting rights following the release of felons from prison is appalling and carries racist undertones. Michelle Alexander, the acclaimed civil rights lawyer and the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, reminds us that “when a defendant pleads guilty… nobody will likely tell him that he may be permanently forfeiting his right to vote as well as his right to serve on a jury - two of the most fundamental rights in any modern democracy.” In a country that prides itself on the importance of the people’s voice and hinges its citizenship on the right to vote, stripping that right away from anyone who has served their time or placing financial barriers on the restoration of that fundamental right is deliberately delegating those with a felony on their record as forever inferior and second-class. There are four different ways to handle the reinstatement (or lack thereof) of voting rights in the United States, three of which are problematic (“Felon Voting Rights”). In Maine and Vermont, those convicted never experience the loss of voting rights, in or out of prison and probation. This naïve way to manage voting rights creates a false illusion of untouchability in the face of punishment. On the contrary, twenty-one states restrict the right to vote during both the prison and parole periods but are automatically restored after completion. This fix is unsettling because the completion of parole requires the payment of a parole officer - often at a price too steep for newly freed citizens - which results in their loss of freedom and rights once more (Bellafante).

Eleven states rescind the right indefinitely or until further action via a governor’s pardon. Kentucky and Iowa impose lifetime bans (Wines). This “solution” is inadequate because of the way that the criminal justice system disproportionately affects citizens on the basis of race while white people still comprise the majority of those incarcerated, the proportion of Black people behind bars is overwhelming compared to their percentage of the general population (Kiefer). If their voting rights are difficult to reobtain (be it a monetary hurdle or a bureaucratic one), we are systematically and unfairly repressing the voice of African Americans in this democracy. Look at these statistics: while it is problematic enough that in Kentucky, 1 in 10 adults are barred from voting for life due to a prior felony conviction, 1 in 4 African-Americans cannot vote for the rest of their life for the same reasoning (Wines). The best way to balance the impact of punishment while maintaining the equal application of civil rights to a population is to disenfranchise a felon while they are imprisoned, but automatically restore their voting rights once released from custody; a policy 16 states and the District of Columbia have in place (“Felon Voting Rights”). The United Nations Committee on Human Rights has made its voice crystal clear: voter disenfranchisement is discriminatory and violates international law (“U.N. Committee Says U.S. Bans on Former Prisoner Voting Violate International Law”). They have been conducting hearings and releasing reports on the topic since 2006. For nearly 14 years, 32 states have held out on changing their prejudiced and unfair practice. While the report is not legally binding, It has been noted time and time again by international officials and reporters alike: “rules that bar former inmates from the polls are excessively punitive, socially alienating and inconsistent with the core principles of American democracy (Staples).” At the moment, between 4 and 6 million Americans are banned from voting due to felony disenfranchisement laws (Mauer and Kansal). The practices of permanent disenfranchisement were built on a legacy of racism, the same legacy that will haunt American voting booths for lifetimes to come in the 32 states that choose to impose barriers for those wishing for the full reinstatement of their civil rights. The responsible, equitable, and appropriate response to being confronted with such horrifying statistics is to immediately and automatically reinstate the voting rights of all released felons. Failure to do so allows a culture of racism to permeate the very

democracy we take pride in and does not allow for the system to work with and for everyone in our society.

Works Cited Bellafante, Ginia. “Criminal Justice Reform Empties Cells, Parole Fills Them Up Again.” The New York Times, The New York Times, 2 Feb. 2018, www.nytimes.com/2018/02/02/nyregion/criminal-justice-reform-empties-cells-parolefills-them-up-again.html. “The Cruel Hand.” The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander, The New Press, 2010, pp. 140–177. “Felon Voting Rights.” National Conference of State Legislatures, 14 Oct. 2019, www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx. Flurry, Alan. “Study Estimates U.S. Population with Felony Convictions.” UGA Today, 19 Dec. 2017, www.news.uga.edu/total-us-population-with-felony-convictions/. Kiefer, Peter C. “The Future of Restoring Voting Rights for Ex-Felons: The Surprising Facts.” Trends in State Courts, 2019, www.ncsc.org/microsites/trends/home/Monthly-Trends-Articles/2019/The-Future-of-Res toring-Voting-Rights-for-ExFelons.aspx. Mauer, Marc, and Tushar Kansal. “Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States.” The Sentencing Project, 1 Feb. 2005, www.sentencingproject.org/publications/barred-for-life-voting-rights-restoration-in-perm anent-disenfranchisement-states/. Staples, Brent. “Restoring the Vote to Former Prisoners.” The New York Times, The New York Times, 1 Oct. 2008, www.theboard.blogs.nytimes.com/2008/10/01/restoring-the-vote-to-former-prisoners/?se archResultPosition=1. “U.N. Committee Says U.S. Bans on Former Prisoner Voting Violate International Law.” American Civil Liberties Union, www.aclu.org/other/un-committee-says-us-bans-former-prisoner-voting-violate-internati onal-law. Wines, Michael. “Why So Many Kentuckians Are Barred From Voting on Tuesday, and for

Life.” The New York Times, The New York Times, 5 Nov. 2018, www.nytimes.com/2018/11/04/us/felony-vote-disenfranchisement-kentucky-florida.html.

Race-making through Incarceration and Policing Kalyani Saxena ’20 In discussions of carcerality, the connection between race and systems like policing and incarceration is largely presented as unidirectional. It is commonly held that black people are disproportionately policed and incarcerated because of their race. This understanding while true, neglects a key dimension of the relationship between race and carcerality. Carceral systems don’t just rely on racial categorization. They actively create and reinforce racial categories and outcomes. Marisol Lebrón and Lisa Guenther, while writing of different histories and contexts, examine the ways in which policing and incarceration engage in race-making. Lisa Guenther’s chapter “The Racialization of Criminality” traces how the evolution of the current prison system from slavery came to associate criminality with blackness (Guenther). In her book Policing Life and Death, Marison Lebrón examines the ways in which policing in Puerto Rico racialized and criminalized the black residents of public housing. Building on their analysis, I argue that policing and incarceration reinforce racial categories by defining blackness solely in relation to whiteness. I also argue policing and incarceration racialize minorities as deserving of punishment by responsibilizing them for the structural inequalities that foster violence in their communities. I further assert that as a result of this race-making, black people come to be regarded as disposable and experience social death. I end by assessing various forms of resistance, ultimately concluding that only community led resistance is effective in combating the social death that carceral racemaking leaves in its wake. One of the most pervasive and damaging ways in which policing and incarceration construct race is by defining blackness solely by the threat it poses to whiteness. In the context of incarceration, this meant depriving black people of any individual identity that wasn’t criminal. For example, in the Antebellum South, slaves were considered to have no social recognition, rights, or legal will except when it came to issues of disobedience (Guenther 47). If a slave was to disobey their master or show some resistance, only then were they regarded as capable of having individual will. Put simply, a black person was not a person until they posed a threat to a white person. This recognition of black people solely within a context of danger and

disobedience reinforced the idea that blackness had little meaning beyond criminality. Additionally, if black people were only people when they were disobedient, then their very personhood necessitated a need for punishment. It thus comes as little surprise that notions of blackness became intertwined with incarceration. Since blackness supposedly demanded punishment, any act by a black person had the potential to be perceived as criminal. Bruce Franklin summarizes puts it well when he says that black people were criminalized for “moving around” and “for staying still (Guenther 49).” The connection between slavery and incarceration also positioned whiteness in opposition to blackness and defineed white identity by ‘freedom and civility (Guenther 48).’ In order to protect freedom and civility, and therefore whiteness, the state needed to lock up those it had deemed criminal. Thus, incarceration perpetuated notions of racialized criminality in order to constrain and control black people. Policing operates similarly to incarceration. In order to protect whiteness, it emphasizes the idea that black communities must be watched and kept in line by any means necessary. During the 1990s in Puerto Rico, governor Pedro Rosselló launched an anti-crime campaign called mano dura contra el crimen. In trying to justify the campaign, Rosselló argued that something needed to be done to protect the ‘decent and hardworking’ people of Puerto Rico (Lebrón 33). This rhetoric created a narrative of victimhood that white affluent Puerto Rican elites, who were particularly suspicious of the minorities living in public housing, identified with In order to create a sense of safety for these elites, public housing became the focus of heavy policing

(Lebrón 32-34). This explicitly criminalized the experience of being black and poor (Lebrón 24). Policing enclosed public housing so that people from those communities could not leave and pose any threat to the largely white urban elite (Lebrón 35). Their individual identities, desires, and needs were of little importance. Any black person who lived in public housing was automatically a threat to stability and peace for white Puerto Ricans. For example, during the police occupation of public housing, children and teenagers were seen primarily as potential drug mules and were subjected to frequent searches (Lebrón 38). Therefore, policing made it abundantly clear that to be black and low-income was to be criminal. Policing and incarceration further reinforce racial categories by blaming black people for the structural inequality and economic stress that produce violence in their communities. Lisa Guenther

argues that this rhetoric has become a sort of common-sense logic amongst the U.S penal system, pointing to Supreme Court Justice Antonin Scalia’s 2012 comment that the role of prisons had

shifted to deliver “deserved punishment for crime (Guenther 57).” Comments like these responsibilize black people by suggesting that their incarceration is demonstrative of their wrong-doings. They ignore the influence of structural factors like job loss, welfare cuts, and the trauma of generational poverty in fostering an environment where crime is more likely to take place. As a result, a black person’s criminal behavior is treated as a direct reflection of their morality. It becomes easy to believe that an incarcerated person must only be in prison because they are a bad person deserving of punishment. Policing also perpetuates criminalization through responsibilization. In Puerto Rico, many low-income black families living in public housing from the 1980s to the 1990s found their communities brutalized by drug wars and crime (Lebrón 30). While a large deal of this conflict can be attributed to the economic instability of neoliberalism, the police used the break-out of crime to suggest that these communities were unstable and needed to be regulated (Lebrón 30). This indicated in no uncertain terms that

residents of public housing were inherently dangerous (Lebrón 30). Additionally, the more police marched into black communities, the more powerful narratives about criminalization became. The increased presence of police suggested to anyone watching that black people must truly be the worst kinds of criminals to warrant that sort of extreme treatment. Thus, carceral systems not only further the racist notion that black people are inherently dangerous, through responsibilization they also suggest that black communities have invited incarceration and policing onto themselves. The creation of racial categories through policing and incarceration has a serious impact on the outcomes facing black people. The powerful narratives around blackness that emerge from this race-making process produce a notion of disposability that perpetuates social death, i.e when “a

person or group of people is excluded, dominated, or humiliated to the point of becoming dead to the rest of society (Guenther XX)” In the context of incarceration, disposability and social death are linked to a logic of profitability. According to Fanon, the black man’s being does not matter, “he might as well be dead if his material and symbolic labor were not so profitable (Guenther 55).” A black person’s individual identity means little because their imprisonment is only

useful in that it is profitable to the white man by 1) producing labor and 2) by demonstrating 26

control of an entire population. Since the incarceration of any black person achieves both of these goals, there is little need for the state to be concerned with the individual well-being of any one prisoner. As a result, incarcerated black people were often subjugated to the most brutal forms of physical labor, depriving them of opportunities to make meaningful connections with anyone else (Guenther 51). Policing also ensures social death through notions of disposability. In the Puerto Rican context, policing did not operate according to logics of profit. Rather, black people’s disposability was linked to state power. During the neoliberal era, the state government, unable to meet the economic needs of many Puerto Ricans, attempted to reassert its legitimacy as a strong state through its security apparatus (Lebrón 29). When the state targeted public housing, it showed that it was strong and that it had a strategy to curb violence. Thus, black people living in public housing were important only in the supposed threat that they posed to the state. The state cared little about the images of black bodies displayed on TV (Lebrón 47). It did not matter what their individual hopes and dreams of the victims were, their deaths symbolized that state power was robust and that policing worked. Black people were disposable precisely because their bodies proved that the state was doing its job. People within these communities were thus experiencing

widespread social death. They were dead to the state and the society. For all the role that policing and incarceration play in perpetuating racist norms and social death, there are ways that people try to resist. One of the most effective forms of resistance is community led organization. This type of resistance is effective for two main reasons. The first is that it combats social death by building connections that are not regulated by the state. One example is the work of Mothers Recovering Our Children, a group of mother, sisters, and community members who work to fight the social death of incarceration (Guenther 60). By building a community with a purpose and a goal, MROC created a social dialogue that

was decipherable only to those who were familiar with the personal effects of incarceration. Community organizing subverts the effects of incarceration by using the alienation that it creates to build unity. The second reason that community building is effective is its ability to generate solutions by people who are familiar with the effects of carceral racialization. For example, Puerto Rico’s Acuerdo de Paz, a violence reduction and prevention program, employed staffers from the community (Lebrón 214). These staffers quickly realized that members of public housing had come to themselves believe that their neighborhood was inherently violent and began pursuing

programs that denormalized violence and presented alternatives to policing (Lebrón 217). This had a marked effect on the community and even led to a period of limited violence (Lebrón 219).

Acuerdo de Paz could not have pursued such a targeted program without the knowledge of people who were intimately familiar with the ways that policing created racist notions of violence and blackness. Some however may argue that community organizing is too slow-moving. They may instead suggest that it is more effective to appeal to those with power that are sympathetic to the plight of marginalized communities. These people supposedly have the money, resources, and political sway to make real structural change. It is true that people pay attention when the elite make a fuss about structural racism. In Puerto Rico, student protests against the state and police violence mobilized many Puerto Ricans who identified with the students (Lebrón 153). People in elite positions however often have little understanding of the ways in which state violence disproportionately impacts black people and may hold beliefs that actually worsen racial categorization (Lebrón 173). The Puerto Ricoan student protestors for example used a common refrain, “We are students, we are not criminals (Lebrón 173).” In propping up a certain section of the population as undeserving of criminalization, this kind of rhetoric suggests that some people are in fact deserving of this treatment. It advocates for a redirection of violence towards the ‘real criminals’ without examining why certain groups are more likely to be labelled criminals (Lebrón 173). The majority of this essay has focused on the various ways in which policing and incarceration produce racialized notions of criminality that lead to social death. It has also argued that community organizing is a far most effective form of resistance than appealing to elites with power. However, it is important that before concluding we take a moment to reflect on the fact that the most effective form of resistance is one that originates from the people most deeply affected by the carceral system. The work that marginalized communities do, while invaluable, requires black and brown folks to routinely put themselves at risk, both mentally and physically. As a society, we

need to ask ourselves hard questions about the emotional labor that we are asking our most vulnerable communities to perform alone. They are currently the best option for change precisely because they are intimately familiar with the ways in which carcerality disrupts and displaces lives. It is therefore our responsibility to unpack the logics of carcerality on our own 28

so that we can better resist racial categorization and prevent further exploitation of physical and emotional labor from those that the system fails.

Works Cited Guenther, Lisa, “The Racialization of Criminality,” Social Death and Its Afterlives, (University of

Minnesota Press, 2013). Lebrón, Marisol, Policing Life and Death, (University of California Press, 2019).

Taste and Other Unequal Things Kalyani Saxena ’20 In Chapter VII of Milton Friedman’s 1962 book Capitalism and Freedom, Friedman addresses the issue of discrimination within the capitalist system (93-101). He proposes that markets are far better than governments in reducing discrimination for two main reasons (93). The first is that markets are generally impersonal and have an incentive to “to separate economic efficiency from other characteristics of the individual (Friedman 26, 94).” Secondly, Friedman believes that discrimination is a case of negative harm; a case in which two people cannot reach “a mutually acceptable contract (96).” In such a case, in which there is no coercion, he sees government intervention as limiting individual freedom, and by extension threatening political freedom (96). I however find that Friedman’s theory largely misunderstands discrimination. Through the lens of racial discrimination in the housing market, I will point out the ways in which Friedman’s belief in the strength of the market fails to capture the reality of economic discrimination. Firstly, I argue that the market is not always impersonal and, contrary to Friedman’s assertions, often has an incentive to discriminate. Secondly, I argue that discrimination through negative harm is more than a misalignment of individual preferences and is actually the product of cultural inequality. Lastly, I make the case that relying on markets to resolve discrimination actually infringes upon individual economic freedom and therefore limits political freedom. Friedman begins his chapter on discrimination with the claim that “discrimination against groups of particular color or religion is least in those areas where there is the greatest freedom of competition (93).” This quote highlights Friedman’s main argument; a society with limited restrictions on economic activity is more likely to be more egalitarian. Key to this claim is the role of markets, which according to Friedman, are naturally impersonal (93). As Friedman explains, someone who wants to purchase bread has no indication of whether it was “made from bread by a white man, or a Negro bread, by a Christian or a Jew.” In practice, this means that we generally don’t know who is involved in the production of our products and therefore there is no real reason or ability to discriminate. Furthermore, in a market system producers are incentivized not to discriminate because it puts them at a disadvantage (94). Friedman provides the following

compelling example to clarify this point, “A businessman or an entrepreneur who expresses preferences in his business activities that are not related to productive efficiency is at a disadvantage compared to other individuals who do not.” What Friedman is pointing to here is that discriminating in a market often leads to higher costs (94). This seems to make practical sense. If a black producer is able to make a good for a lower price, then buying from a more expensive white producer would increase costs and put a producer behind competitors. People within the market are thus disincentivized from discriminating. I want to point out however that Friedman is not arguing that discrimination in the market does not happen. He acknowledges that discrimination based on individual characteristics exists but sees it simply as a “taste of others that one does not share (Friedman 94).” Just as people prefer to buy from one brand over the other, people may prefer to interact with one race over the other. Their tastes are a reflection of individual preferences, no matter if those preferences are good or bad (94). While some may argue that this difference in preferences hurts people of marginalized groups, Friedman would say that we need not be concerned about this type of harm because it is not positive i.e there is no coercion and no one is being forced involuntarily into a contract (96). Discrimination is an example of negative harm, in which two individuals are “unable to find mutually acceptable contracts.” In such cases, it is best to keep the government out. In Friedman’s view, government policies that try to reduce discrimination through legislation interfere “with the freedom of individuals to enter into voluntary contracts with one another (95).” For a neoliberal like Friedman, people should have economic freedom i.e be able to make choices about exchange without force or threat (20). Government interference, even for the supposed good of some, is coercive because it forces people into exchanges they would not enter into voluntarily. While this may seem overly callous, Friedman has reason to believe that the harm caused by a difference in taste is limited. Since the free market is driven on competition, people harmed by negative harm should be able to find another place or person with whom they can reach a mutually acceptable contract. Friedman makes reference to a similar idea on page 20 when he says that, “The consumer is protected from coercion by the seller because of the presence of other sellers with whom he can deal (20).”

It is important to engage with why Friedman is so opposed government intervention in reducing discrimination. Friedman profoundly mistrusts the government’s ability to regulate without infringing upon people’s individual rights. He alludes to this idea in the following quote, “The power to do good is also the power to do harm… (Friedman 11)” When the government is given the ability to put through legislation that forces people to enter contracts, that same machinery and legislative power can be used for bad. By making the state the gatekeeper of contracts, people surrender their right to enter voluntary agreements to an entity that may not always have their best interests at heart (95). Furthermore, in neoliberal theory, individual economic freedom is crucial to political freedom (the absence of coercion by fellow men) (21). If the government controls the economy and people’s choices, it also constrains their ability to participate in the political process and hold the government accountable. Friedman’s arguments appear to be well-placed; the market allows us to have a free society by preventing authoritarian rule and enabling political participation. However, despite his extensive theory and rationales, I argue that Friedman ultimately misunderstands how discrimination works in the market. One obvious flaw is the notion that the market is largely impersonal and always has an incentive to avoid discrimination. While we generally do not know who produce our products, some of the most important facets of economic activity involve in-person interaction. Everything from finding employment to securing housing requires a person to identify themselves. Unveiling individual characteristics often leads to the discrimination that Friedman proposes is less likely to happen. Discrimination against African Americans in the housing market exemplifies this point. Throughout the 20th century, African Americans struggled to secure loans for housing and often were unable to convince realtors to even show them available openings (Martin). In fact, according to Harold and Bil Moss, in the 1950s “if they got to a house first, the real estate agent would leave upon seeing them.” Economic actors like realtors are usually aware of the racial characteristics of the person they are interacting with and will frequently be negatively influenced by this awareness. Although some may try to argue that this type of discrimination was a unique characteristic of its time, practices like this still exist today. Linda Hurley Ishem, a senior lecturer at the University of Washington Tacoma, talks about a practice called “steering” in which agents only show black families homes

in certain neighborhoods. The continued presence of steering clearly shows that Friedman’s theory is flawed in its assertions about the impersonal nature of the market. Furthermore, I would argue that contrary to Friedman’s assertions about cost calculations preventing discrimination, there is actually often an economic incentiveto exploit minority groups. For example, in the build-up to the 2008 financial crisis, it was more likely on average that a black family making more than $200,000 a year would receive a subprime loan (a loan with higher than regular interest rate and other prepayment penalties) (Smith) than a white family making $30,000 a year (Andrews).” While these loans are usually reserved for those with low credit scores, lenders targeted high-earning black families because it allowed them to make more interest. I would argue that it was particularly beneficial to target black families because many African Americans have historically been barred from loans and generational wealth (Mullen) and were therefore less likely to question the deal they were getting. This proves not only that discrimination is prevalent in the market but also that there is often a strong economic incentive to discriminate against specific minorities. Ultimately, these points undermine Friedman’s emphasis on markets as the best mechanism for people to engage in economic activity without the extra baggage of race and identity. While Friedman perhaps may acknowledge that discrimination is alive and well in the market, he would argue that there is still no real problem because discrimination is an example of negative harm. I disagree with this argument because it ignores the pervasive cultural aspect of discrimination. Friedman bases his theory of negative harm on the individual. If two people cannot reach a contract, it is because their tastes are simply misaligned. This language trivializes discrimination and implies that it is something random. It suggests that people are as predisposed to hating African Americans as they are to disliking pickles. People’s “tastes” are not formed in a vacuum. Preferences are a product of culture, shaped by the ideas and values of our communities in ways that infiltrate all spheres of life. Therefore, if a white person decides that they do not want to interact with a black person, it is not an isolated interaction between two individuals but a reflection of the dominant cultural environment. In a place like America, where cultural values have long been unequally skewed in favor of one group across all spheres of the economy, the market is unable workout discrimination over time. African Americans for example have been

disenfranchised through American history, a legacy that traces its roots back to slavery. This racial discrimination is represented in the housing market. A recent study found that even when a white buyer and a black buyer are presented as having the same income and assets, the black buyer is shown 11% fewer rental homes and approximately a fifth fewer homes than the white buyer (Demby). Friedman would see this simply as a difference in individual taste but in reality the study was replicated more than 8,000 times in metropolitan regions, pointing to a widespread cultural way of thinking and discriminating.This has profound implications for Friedman’s argument that people can always find another seller. If institutional racism dominates sellers across a society, people are unable to find an alternative. The market therefore cannot and will not resolve the discrimination. Furthermore, I want to make the case that relying on the market alone to reduce discrimination actually undermines the political freedom that Friedman is so concerned with. If certain groups are constantly disenfranchised by the market and left destitute, they will be unable to engage in the political process. People need to have some level of financial security before they can even begin thinking about holding the government accountable. Author Gwendolyn Mink makes a similar point when she talks about social rights which allow people to have enough to survive and participate in society. Take for example, the targeted lending of subprime loans which prompted African American wealth to plummet after the financial crisis. This is especially important because wealth is often used as a “safety net” for families and future generations in case of crisis. It also affects how well families can gain access to basic needs like food and shelter (White). So when certain groups are deprived of wealth because of discrimination, their time, energy, and money all go towards preventing their family from falling into poverty. As a result, there is likely to be less political participation from these groups, leading to a government that represents the needs of only a few and restricts the freedom ofothers. Even Friedman himself acknowledges the need for financial stability in ensuring political freedom, saying “in order for men to advocate anything, they must in the first place be able to earn a living (22).” Relying solely on markets to resolve discrimination will ultimately lead to restrictions in political freedom that Friedman should find unpalatable.

Although I have spent the majority of the essay highlighting the various flaws in Friedman’s defense of markets, I want end by reflecting on his concerns about the government. Friedman is not wrong when he points to the government’s ability to use its authority for less than benevolent purposes. In fact, the government practice of “redlining” is largely responsible for restricting African Americans’ access to loans during the 20th century (Gross). The government is susceptible to discriminatory practices just as markets are. The question then is whether, despite its flaws, government is a more effective tool than the market at reducing discrimination. I would argue that there is a strong case that the answer to that question is yes. The market is clearly not self-correcting, discrimination existed in the past and continues to disenfranchise minorities. However, when the government steps in, it can correct the mistakes of the past with better legislation. The 1968 Fair Housing Act for example, ended most of the obvious forms of discrimination in the housing market and led to wealth gains for African Americans (The Editorial Board). These gains however were essentially reversed when the government pulled back regulations on the financial market, allowing for predatory lending practices like subprime loans. Thus, while the government is an imperfect vehicle, it appears as if its regulations are crucial to preventing discrimination run rampant in markets and the economic sphere.

Works Cited Demby, Gene, “For People Of Color, A Housing Market Partially Hidden From View,” NPR, June 17, 2013 White, Gillian B. “The Recession's Racial Slant,” The Atlantic, June 14, 2015. Andrews, Jeff “Black homeownership rates haven’t changed much in the 50 years since the Fair Housing Act,” Curbed,March 13, 2018 Martin, Kate “How racism kept black Tacomans from buying houses for decades,” The News Tribune, August 10, 2018. Smith, Lisa “Subprime Loans: Buyers Beware,” Forbes, August 27, 2007 Friedman, Milton, Capitalism and Freedom,Chicago, University of Chicago Press, 1962, 93-101. Gwendolyn, Mink, Welfare's End, Cornell University Press, 1998. Gross, Terry, A 'Forgotten History' Of How The U.S. Government Segregated America,” NPR, March 3, 2017 The Editorial Board, “Blacks Still Face a Red Line on Housing,” The New York Times, April 14, 2018 Mullen, Troy “The ‘heartbreaking’ decrease in black homeownership,” The Washington Post, February 28, 2019

P.M. and C.M. v T.B. and D.B. Faith Davenport ’20 Statutes regarding the legitimacy of surrogacy contracts vary from state to state. This issue is further complicated by the increasing frequency of gestational surrogacy, made possible by In Vitro Fertilization. In gestational surrogacy, the surrogate mother doesn’t share any genetic material with the child, while the biological parents often do. In 2018, the Iowa Supreme Court adjudicated the case of P.M. and C.M. v T.B. and D.B. (Iowa Code), and decided affirmatively that under Iowa law gestational surrogacy contracts are legally enforceable. Additionally, the court noted that because the intended father was also his genetic and biological father, he was thus was the sole possessor of parental rights, even barring a pre-existing contract. The Ms were a married couple who wanted to conceive a child together, but Mrs. M was physically unable to have children. They placed an ad seeking a gestational surrogate to carry an embryo created from Mr. M’s sperm and an anonymous donor’s egg to term. Similarly, the Bs were a married couple who wanted to have a biological child, however, Mrs. B was told she would have to undergo the expensive process of IVF. In order to raise money to undergo IVF for herself, in the future, Mrs. B responded to the M’s ad. The two couples initially got along well, and they agreed that Mrs. B would gestate the embryo created with Mr. M’s sperm and immediately transfer parental rights to the Ms upon giving birth. In exchange, the Ms would pay Mrs. B $13,000 and all pregnancy-related medical bills. Mrs. B then intended to use this money to pay for her own IVF treatments. Mrs. was successfully impregnated with two embryos, which developed into twin fetuses. In order to ensure the legitimacy of this agreement, the Ms hired a lawyer to create a “Gestational Carrier Contract.” The contract detailed the payment arrangement, termination ofparental rights, and prevented the Bs from attempting to establish any connections or

relationship with the child. The contract acknowledged that both parties were allowed to consult with legal counsel, and mandated that all parties had carefully read and understood all parts of the contract. All four parties were signatories of the contract. Soon, though, the two couples’ relationship devolved. Mrs. B decided that she needed $30,000 instead of the original $13,000, and personal tensions spiraled after the Ms refused to increase the payment amount. Mrs. B gave

birth to the twins 14 weeks prematurely, and one twin passed away at birth due to medical complications. Mr. and Mrs. B neglected to notify the Ms that the babies had been born, or that one had passed away. Suspecting that the babies had been born, the Ms took the Bs to court over violation of their gestational surrogacy contract. The court then assigned a Guardian ad Litem and ordered all parties to undergo genetic testing. The Ms claimed that the Bs were bound by their contract, and had to immediately terminate their parental rights and turn Baby H over to their custody. The Bs argued, however, that they should be considered Baby H’s biological parents, and therefore have sole custodial rights. The Bs also argued that the gestational surrogacy contract could not be legally enforced under the US constitution and Iowa law. The district trial revealed that genetics testing proved that Mr. M was the biological father of the child and that no other party was biologically related to Baby H. Additionally, the GAL recommended that custody be granted to the Ms. The Supreme Court of Iowa had to whether the surrogacy contract was 1) valid and 2) enforceable. A review of relevant law demonstrates that most states lack the policy infrastructure to dictate the terms of surrogacy contracts. Furthermore, the court recognized that even more states lack specific provisions relating to gestational surrogacy, separate form traditional surrogacy. The court notes, though, that many courts rely on the American Bar Association recommendation, which allows for “traditional and gestational surrogacy contracts subject to extensive regulation that includes judicial pre-approval, limits on compensation, and provisions concerning the revocation rights of the parties.” Ultimately, the court ruled that gestational surrogacy contracts are legitimate, as surrogacy arrangements are exempt from the Iowa statute that criminalizes selling infants (P.M. v. T.B.). On the issue of enforceability, the court evaluated whether or not the contract was “prohibited by statute, condemned by judicial decision, or contrary to public morals.” The court found, in this case, that the contract was not. Importantly, the court argued that the previously mentioned Iowa statutory exemption was made in 1989, in reaction to the “Baby M” case, and thus was ultimately intended to protect the rights of parents who could not traditionally conceive a biological child.

Therefore, because the contract explicitly dictated the terms of the pregnancy and parental rights transfer, the Bs were found in violation and custody of Baby H was transferred to the Ms. Additionally, the court stated that any rights Mrs. B is granted under the 14 amendment Due Process and Equal Protection Clauses were not legitimate grounds for claiming a fundamental parent-child liberty interest, because she was not the biological parent of Baby H, and because she knowingly entered into the gestational surrogacy contract. While I agree with the court's ruling, I firmly believe that this subject area needs more legislative attention. Legal issues of childbirth and fertility are nuanced issues that intimately impact the private lives of thousands of individuals and families. Laws regarding the

enforceability of surrogacy contracts, both traditional and gestational, should be clearly developed in every state, if not federally standardized. Without this legal framework, both surrogacy parents and intended parents are vulnerable to turmoil and burdensome court costs amidst situations wherein the right to custody is unclear under commanding state law.

Works Cited Iowa Code ยง710.11 P.M. v. T.B., 907 N.W.2d 522 (2018)

Nischan v Stratosphere Quality, LLC Faith Davenport ’20 As demonstrated in Meritor Savings Bank v. Vinson (1986), Title VII of the Civil Rights Act of 1964 shields employees from being forced to endure a hostile work environment because of severe or pervasive sexual harassment. These protections are essential to ensure that workers, especially female workers, are allowed the opportunity to succeed and feel comfortable at their place of employment. However, as demonstrated in the case of Nischan v Stratosphere Quality, LLC (2017), current legal interpretations of employer liability may prevent victims from securing claims under Title VII if their harasser is technically employed by a different business entity, but in practice works alongside the victim. This is increasingly worrisome as businesses more frequently turn to contractors or consultants to fulfill roles that were previously completed in-house. On June 5, 2012, Michele Nischan was hired by Stratosphere Quality, LLC. Stratosphere provides third-party inspections to car manufacturers, like Chrysler. Nischan was a “project supervisor” at the Chrysler plant overseeing inspections. While working at the Chrysler plant, she frequently came into contact with Sabbah, the Chrysler employee tasked with being the liaison to Stratosphere. According to Nischan, Sabbah “relentlessly” sexually harassed her by making inappropriate sexual comments and “routinely rubbing his penis on her hip and buttocks; hugging her, while moaning; pressing himself against her breasts, while moaning.” The circumstances were severe and observed by other employees in the firm. During the same period of time, Nischan's work performance declined, perhaps related to the discomfort she was forced to endure at the hands of Sabbah. After one particular severe mistake, Sabbah, in his capacity as liaison to Stratosphere, recommended that Nischan was removed from the plant. Stratosphere compiled. Instead of accepting her relocation and demotion, Nischan quit and filed her sexual harassment claim a week later, suing Chrysler, Stratosphere, and Sabbah individually. She filed charges on the basis of sexual harassment, sex discrimination, and retaliation in violation of both Title VII and the Illinois Human Rights Act. For this memo, I focus only on her claims to sexual harassment in violation of Title VII, all of which the District Court initially dismissed. I will examine the court's ruling concerning each

accused party separately. Notably, no party disputes the veracity or severity of the allegations, only on whom, if anyone, the liability should fall. Nischan’s allegations against Chrysler were fully dismissed. The court ruled that Nischan must have proved employer-employee relationship for Chrysler to sustain any liability. (Love v JP Cullen, 2015). Chrysler was not Nischan’s direct employer, but the court considered whether or not they exercised “sufficient authority” to be considered a “joint employer.” To determine this, they consider a five-factor test, of which only the first two were challenged by Nischan. Therefore, the court considered “(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace.” The court ruled that Chrysler had no impact on her hiring, firing, or scheduling decisions. They did so even though Sabbah exercised the power to give recommendations and performance reviews to Stratosphere regarding Nischan which led to her demotion. Nevertheless, the court ruled that because Stratosphere was not technically bound to follow Sabbah’s recommendation, Chrysler could not be considered part of the firing decision. I disagree with the court’s assessment here, because her firing decision was intimately impacted by her relation to Chrysler, and thus I do not think Chrysler should be considered isolated from her demotion. Regarding the second factor, the court finds that Nischan acquired her skills not from Chrysler or stratosphere, but previous jobs or schooling. In my opinion, this factor also seems unreasonable given that nearly every job requires individuals to enter some baseline skills that they’ve acquired elsewhere. Secondly, the court dismissed Nischan’s civil claims against Sabbah, because individual claims can’t be made under Title VII, regardless of the severity of the inappropriate conduct. Finally, the court considered Nischan’s claims against Stratosphere. The court agreed that an employer-employee relationship existed between the two parties evaluated Stratosphere’s liability. The court asserted that under Title VII there are two different standards for liability based on whether or not the harasser was a “supervisor” or a “nonemployee / “nonsupervisor”. If Sabbah was deemed to be Nischan’s supervisor, Stratosphere would have been strictly liable (Rhodes v Illi. Dept of Transportation, 2004). The court, however, ruled

that, again, because Sabbah could not make the final decision regarding her firing or demotion, he was not technically her supervisor (Jajeh v City of Cook, 2012). The court agreed, though, that Sabbath was a “nonemployee” and considered whether Stratosphere was “negligent in discovering or remedying the harassment” (Vance v Ball State Univ, 2011). Although Nischan failed to file a formal sexual harassment claim at Stratosphere, the court ruled that Stratosphere could still be liable on the grounds of “constructive knowledge” (Hrobowski v Worthington Steel Co., 2004). Essentially, if someone who was contractually obligated to pass along information of harassment neglected to do so, Stratosphere could be found as negligent. As mentioned earlier, two employees, Blackman and Harris, allegedly knew of the harassment. Blackman, an employee that was mandated by her job handbook to report all instances of harassment, confirmed Nischan’s account of the harassment in an affidavit. Nischan’s actual manger, Harris, gave wavering testimonies on his knowledge of the harassment, Therefore, the appeals court remanded this claim to the district court to clarify Harris's testimony on cross-examination.

In my opinion, this case demonstrates a troubling loophole in our current interpretation of Title VII sexual harassment claims, especially as the practice of companies using contractors, consultants, and freelance workers becomes more common (MBO Partners, 2019).

Works Cited MBO Partners. “Independent Contractor vs Consultant: What’s the Difference?” MBO Partners (blog), August 9, 2019. https://www.mbopartners.com/blog/how-start-small-business/what-is-an-independentcontractor-vs-an-independent-consultant/. Nischan v. Stratosphere Quality, LLC, 865 F.3d 922 (2017)

“It’s Not Disruptive”: The Legal Rhetoric of Queer Legitimacy Katherine Thomas ’20 Lawrence v. Texas and Obergefell v. Hodges are two landmark Supreme Court cases for the LGBT+ rights movement. In 2002, Lawrence v. Texas banned anti-sodomy laws throughout the country, deeming them unconstitutional. Twelve years later, Obergefell v. Hodges ruled that all states must license and recognize same-sex marriages. The constitutional protections granted by these cases are in themselves significant. However, the potential impact of these cases is greater than their legal implications. The majority opinions for both cases were written by Justice Anthony Kennedy with rhetoric carrying doctrinal implications. As a result of their rhetorical framing of the discourse of gay liberation, Lawrence a nd Obergefell have significance beyond granting rights. While discussing Lawrence v. Texas in her article “The Domesticated Liberty of Lawrence v. Texas” , Katherine M. Franke quotes Judith Butler’s observation that becoming legitimate can be “an ambivalent gift” (Franke 1422). Becoming legitimate is an ambivalent gift as it often necessitates delegitimizing other groups. Legitimacy requires the foil of illegitimacy to exist. Even an incremental step towards legitimacy imposes limitations, as demonstrated by the rhetoric of Lawrence v. Texas. The two men at the heart of the case—John Lawrence and Tyron Gardner—were arrested after police found them having sex in Lawrence’s apartment. In the majority opinion, Justice Kennedy characterizes the sodomy Lawrence and Gardner were charged with as an expression of a committed romantic relationship. In fact, Lawrence and Gardner were discovered having sex and arrested because Gardner’s lover called the police and falsely claimed that there was a black man with a gun in Lawrence’s apartment (Levinson). It is not a coincidence that Justice Kennedy ascribes love and commitment to Lawrence and Gardner, even though there is little evidence to support that characterization of their relationship. He seeks to normalize the relationship between the two men by describing it as close to the heterosexual marital ideal. He describes the sex act in question as an expression of their “enduring personal bond” (Murray 1228) because Lawrence and Gardner are deserving of constitutional protection not as autonomous individuals, but as members of a marriage-like

relationship. In short, Justice Kennedy seeks to normalize the relationship to justify decriminalizing the act of sodomy. Lawrence v. Texas laid clear groundwork for queer liberation in the courts to be derived from a marriage-centered framework of relationships. In her article “Obergefell v. Hodges and Nonmarriage Inequality”, Melissa Murray argues that Lawrence v. Texas can be interpreted two ways: as a stepping stone towards same-sex couples being permitted to marry or the “impetus for a more pluralistic regime of relationship recognition” (Murray 1221). Murray argues that Lawrence derives its radical potential from its creation of “a space between marriage and crime that, in the relative absence of legal regulation, offered the possibility of sexual liberty untethered to the disciplinary domains of the state” (Murray 1226). Franke correctly predicted in her 2004 article on the case that those who favor the governance of sexuality would soon come to support same-sex marriage as a result of the “underregulated space that lies between criminalization and legitimization through marriage” (Franke 1426). Murray also emphasizes Justice Kennedy’s recognition of the bond shared by same-sex relationships as a celebration of nonmarried relationships. Justice Kennedy does celebrate these nonmarried relationships—by equating them with married relationships. The nonmarriage relationship at the heart of Lawrence i s praised by Kennedy for its perceived similarities to heterosexual marriage. He finds it similar enough to the ideal of heterosexual marriage to justify decriminalization, though not worthy of government recognition. That would come later, with Obergefell v. Hodges. The passage of Obergefell in 2015 ended the “underregulated space” and maintained a similar rhetoric of legitimacy and normalization. Like Lawrence, Obergefell valorizes the unit of the couple over autonomous individuals. Justice Kennedy touches on institutions of marriage and “the home” in Lawrence v. Texas. With Obergefell v. Hodges he expounds marriage as the central institution of American society and a fundamental right of same-sex couples. Kennedy includes four principles to demonstrate why, under the United States Constitution, the right to marry is fundamental for same-sex couples. He argues that marriage is inherent to individual autonomy, supports a two-person union like nothing else, will protect children and families, and is a keystone of American social order. Echoing his characterization of Lawrence and Gardner’s

relationship, Justice Kennedy devotes a section of his opinion to summarizing the stories of several Obergefell p laintiffs. While almost certainly well-intentioned, these vignettes are also explicitly intended to establish the plaintiffs as cognizant of marriage’s desirability and elevated status. He is again rendering plaintiffs intelligible by normalizing their relationships. Murray theorizes that Obergefell will diminish the likelihood of relationship pluralism by deeming marriage the only constitutionally protected option for relationship formation. Obergefell v. Hodges redetermined which romantic relationships were considered legitimate in the United States by legalizing same-sex marriage throughout the country, but the costs of that legitimacy are not yet clear. Murray and many others also share a concern that post-Obergefell further steps for LGBT+ rights will be hindered by the attitude that gay liberation has already been achieved. Over time, we will continue to observe the effects of Obergefell’s rhetoric and doctrinal implications for LGBT+ rights. On October 8, 2019, three cases concerning LGBT+ employment discrimination were argued before the Supreme Court. Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC all concern whether the federal ban on sex discrimination includes discrimination on the basis of sexuality and/or gender identity. The Court has yet to rule on these cases, but the transcripts of their oral arguments have been made available to the public. The rhetoric used to argue and decide these cases will allow some insight into how Justice Kennedy’s reasoning will affect future cases. After all, the values he espouses in Obergefell are hardly unique to him. The ideology that prioritizes the heterosexual marital ideal over other relationships is not only individually held, but institutionally sustained. The rhetoric used in the oral arguments for these cases has some similarities with Justice Kennedy’s rhetoric in support of same-sex marriage. During an exchange with Justice Neil Gorsuch, Aimee Stephens’ attorney David Cole rebutted Gorsuch’s implication that protecting the right of trans people to use the bathroom of their choice would disrupt society. In defense of transgender people using bathrooms that conform with their gender identity, Cole said: “transgender people follow the rule that’s associated with their gender identity. It’s not disruptive” (27). Cole cited his client and unnamed male transgender attorneys in the room as

examples of his argument. Although he is speaking out on behalf of constitutional protections for trans people, Cole’s argument is based on the assumption that transgender people will not disrupt society because they still follow the rules of the gender binary. While this statement may be true of his client, Aimee Stephens, and the transgender attorneys he references in his argument, not all trans people follow the rules of gender. This logic erases gender non-conforming trans people who do not fit a normalized gender binary. David Cole chose to defend the rights of transgender workers by saying that they follow the “rules” of gender. Harris Funeral Homes i s unrelated to marriage, but like Lawrence v. Texas and Obergefell v. Hodges the defense of the queer people in question is at least partially based on the understanding that they are queer people who follow the rules. They are normalized and can be sufficiently regulated. According to Lawrence v. Texas, the queer people referenced by the majority opinion are engaging in acts of sodomy as only one aspect of shared lives. By framing the act of sodomy at the heart of Lawrence v. Texas as an extension of a marriage-like relationship, Justice Kennedy enforces the marriage-centered framework of relationship recognition. Lawrence and Gardner’s act of homosexual sodomy is made intelligible through the matrix of heteronormativity. The same-sex couples legitimized by Obergefell v. Hodges are deserving of access to the nation’s most profound union because they respect and conform to its ideals. According to Kennedy’s reasoning in these cases, queer people that sufficiently conform to the heteronormative ideals are deserving of constitutional protection. The rhetoric of Lawrence v. Texas a nd Obergefell v. Hodges is dangerous not only because it prioritizes the domestinormative marriage model of relationships, but because the constitutional protection it offers comes at the cost of normalization and regulation. How this will affect future LGBT+ rights cases in the Supreme Court and the larger LGBT+ rights movement remains to be seen.

Works Cited Franke, Katherine M. “The Domesticated Liberty of Lawrence v. Texas.” Columbia Law Review, vol. 104, no. 5, June 2004, pp. 1399–1426. Lawrence v. Texas, 539 U. S. 558 (2003) Levinson, Sandord. “The Gay Case.” Texas Monthly, 1 Mar. 2012, Millhiser, Ian. “The Supreme Court Showdown over LGBTQ Discrimination, Explained.” Vox, Vox, 8 Oct. 2019. Murray, Melissa. “Obergefell v. Hodges and Nonmarriage Inequality.” California Law Review, vol. 104, no. 5, 1 Oct. 2016, pp. 1207–1258. Obergefell v. Hodges, 576 U. S. ___ (2015) R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC, ___ U. S. ___ (20__)

Environmental Racism: Theoretical & Practical Considerations Katie Twiss ’21 In this paper, I will present a snapshot of the ideas and frameworks presented by Foster and Cole’s chapter “Environmental Racism” in From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement and consider how they might be incorporated into Catriona McKinnon’s description of climate change and climate denial in “Should We Tolerate Climate Change Denial?” to improve the accuracy and normative power of her work. I will conclude by considering how the resulting understanding of the role of environmental racism might influence our policies and practices. In “Environmental Racism,” Foster and Cole argue that a purely distributive understanding of unjust and racist environmental outcomes is an incomplete one (134). They first acknowledge the many studies that point to race as a “predictor of exposure to environmental dangers (122).” After establishing these facts on the ground, Foster and Cole consider lifestyle and market dynamics as two potential causal explanations for the skewed distribution of environmental hazards that disproportionately harms people of color. They find that lifestyle explanations that reduce the state of distribution to a matter of choice to be unsatisfying and akin to victim-blaming (125). The market dynamics explanation, which gets bogged down in a “chicken-or-egg (127)” question about whether the environmental hazard or the existing racial distribution of people across space emerged first, is similarly unsatisfying, as it “rests on a descriptive, rather than a normative, causal account of the racial disparities in environmental justice research (126).” Foster and Cole then turn to the gap between the intentional acts of racism that the American judicial system is equipped to condemn and the real racist outcomes that people of color experience, which often lack a single actor who can be prosecuted or the clear intention to harm or oppress (127-128). The “prevailing understanding of ‘racism,’ molded by judicial constructions, is myopic in its failure to accommodate for the fact that the nature of racism has become appreciably more subtle and structural (128).” Foster and Cole describe the spatial segregation and isolation of people of color as both a historical and ongoing problem (129), meaning that even assuming that there are no racist actors perpetuating the problem,

unless actors move to eliminate it, the segregation and isolation will continue (130). Relatedly, even facially neutral environmental policies, like those that instead of explicitly discriminating against people of color favor waste storage/disposal in areas with “cheap land values, appropriate zoning, low population densities, proximity to transportation routes, and the absence of proximity to institutions such as hospitals and schools (132)” ignore key “social and historical context (132)” and nonetheless impact people of color disproportionately. Foster and Cole close the piece on a hopeful note, though, with a reminder that, “[e]nvironmental decision-making processes are a location of contestation by, and reform through, grassroots struggles (134).” McKinnon’s “Should We Tolerate Climate Change Denial?” wonders how liberal ideals like freedom of expression can be compatible with the prohibition and condemnation of climate change denial. McKinnon details the practices of industrial climate change denial, which stems from the interests of major fossil fuel producers and emitters (McKinnon 208-209). Such practices include setting impossible expectations for climate scientists’ methodical rigor and sometimes outright deception of the public (209-210). McKinnon ultimately finds that since climate change deniers slow humanity as a whole in our efforts to avert climate disaster, a threat to our security, it can justly be silenced (214). There are two points in McKinnon’s piece where she gets very close to incorporating Foster and Cole’s ideas, but falls just short. First, when considering whether climate denial could be condemned as a harmful kind of speech, McKinnon writes, “climate denial is… not part of a vehicle to hurt and oppress people with particular group-based identities. It is true that some prominent climate scientists have suffered smear campaigns, death threats, and intimidation at the hands of climate deniers (McKinnon 208)…” I feel that McKinnon is considering the wrong group here. Climate scientists, while undoubtedly in some danger at the hands of fanatic climate deniers, are not the most significant group being hurt and oppressed by the vehicle (climate change) in which climate denial sits. People of color and poor people are. The beginning of Foster and Cole’s piece is dense with examples of this fact, illustrated through the case of hazardous waste facility siting in the U.S (122-124). This is one place where a slight alteration might allow McKinnon to

incorporate Foster and Cole’s ideas to more accurately and powerfully describe the state of climate change and who is most in harm’s way. Later, McKinnon claims that, “[a]cquiring false beliefs about climate change as a result of exposure to denial is unlikely to cause direct harm to the health of anyone who has been exposed to it. Indeed, perhaps the opposite is true: perhaps better mental health can be secured by a doxastic turning away from the frightening realities of climate change (McKinnon 211, 212).” While the veracity of this might hinge on your definition of direct harm, I’d like to consider an example that brings the claim into question. Imagine for a moment that you are a climate change denier (or environmental hazard denier, for Foster and Cole’s cases) living in a neighborhood with primarily residents of color. If you actively downplay the harms posed to you and your neighbors by climate change and pollution, you keep community action from being taken as quickly or as decisively. In this way, you increase the odds of worse health outcomes and further exploitation, which might be accurately described as direct harm. But this criticism isn’t to say that McKinnon ignores the disproportionate impacts of environmental hazards on people of color entirely. She employs the following analogy that gestures at the problem: “A fire has started in the theater, from which there are no exits. Unchecked, the fire will kill and injure many in the theater, especially those in the cheapest seats. Many people can smell the smoke, but many others have not yet noticed and are still enjoying the show (McKinnon 213).” Foster and Cole might say that McKinnon has completed the first step toward addressing environmental racism, as she, like the many studies on skewed distributions of environmental hazards across race, has noticed that those in the metaphorical cheap seats of our theater of a planet are the most vulnerable. Foster and Cole would likely encourage McKinnon to take the next step, interrogating what it is about the theater and its patrons the occupants of those seats in the most danger, and I second this suggestion. To conclude, I bring this matter of theory into the real world and consider the practical consequences of incorporating environmental racism into our discourse on environmental issues. 53

While it may seem daunting to add the dimension of race to conversations about climate crisis and environmental action, it might also be cause for some hope. When environmentalism appears detached from human experience (why should I worry about the extinction of a tree frog halfway across the world or an oil pipeline crossing a state on the other side of the country?), incorporating environmental racism into our understanding puts a human face to environmental harms. Such a humanization might mobilize more action, activism, legislation, and community involvement around environmental harms. And just as the elimination of individualsâ&#x20AC;&#x2122; racism wonâ&#x20AC;&#x2122;t in itself dismantle racist systems, this same argument might guide our thinking about the environment. Policies and actions that punish individual contributions to pollution or climate change will not, by themselves, change the systems that incentivize emissions and the production of hazardous waste in the first place.

Works Cited Cole, Luke W., 1962-2009, and Foster, Sheila R., 1963- author. From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement. N ew York University Press, New York, 2001. McKinnon, Catriona. "Should we Tolerate Climate Change Denial?" Midwest Studies in Philosophy, vol. 40, no. 1, 2016, pp. 205-216.

Many Variables, Disastrous Impacts: An Issue Diagnosis and Prescription of Red Tide Hope D’Erasmo ’21 Red Tide: General Overview and Connections to Humanity Red Tide is a general term to describe the overgrowth of harmful algae in oceans worldwide; although the term Red Tide is used colloquially in popular coverage of this issue, it is typically referred to as a Harmful Algae Bloom, or HAB, in scientific literature (US Department of Commerce, N. O. A. A.) as this term better takes into account the inclusion of algae blooms that are not red in color and that include several different species of algae in a single bloom. In Florida specifically, the HABs that appear most frequently are made up of colonies of dinoflagellate Karenia brevis ( Bruckner), a species that is particularly of note to humans because in large quantities, it has the potential to release toxic compounds. The release of these compounds into oceans can result in massive die-offs of marine life, as well as sickness and, in the case of those who are immunocompromised, possible death, in humans. Many of the most severe health risks associated with HABs result from human consumption of seafood that has been contaminated by the algal bloom. There is currently an extensive HAB that is impacting portions of the Florida coastline that began in October of 2017, and it is unclear when or if this HAB will clear up in the extended future (US Department of Commerce, N. O. A. A.). While the longevity of the HAB that is currently impacting Florida is unprecedented for that area of the world, there is some research that has attempted to document and uncover the underlying causes of singular HABs that have seemingly moved from one region to another. Most of this research points to unusually strong winds in a particular region of the ocean as the method of transportation for the dinoflagellates involved (Lee & Bo Qu 535). While it is widely accepted that HABs have occurred naturally for thousands of years, this persistent HAB in Florida, when considered alongside the growing numbers of recorded HABs globally, has led many to believe that there is an anthropogenic reason for this shift in HAB trends. Pinpointing such a cause is difficult however, as there is not yet a broad scientific consensus on even a single hypothesis concerning HABs’ causes. Part of the difficulty in determining what precisely is to blame for these algal blooms comes from the global scale of the

oceans; unlike eutrophication in bodies of freshwater, the sheer size and interconnected nature of the oceans makes it nearly impossible to determine to a point source. Still though, there are several prevailing theories as to what exactly is the cause of both HABs in general, and the increased severity with which they are currently impacting the state of Florida. Like freshwater eutrophication issues, the occurrence of HABs in oceans tends to be associated with high concentrations of nutrients typically found in fertilizers, specifically nitrogen and phosphorus (Mlot). These nutrients allow for the rapid expansion of algae populations, culminating in an HAB. Others posit that the ever-increasing temperature of the oceans that is occurring as a result of global climate change also creates a better environment for the algae to proliferate in excess (Lee). Human activities, such as the large scale disposal of human waste into the oceans, as well as runoff of fertilizers from factory farms that contain excess nitrogen, phosphorous, and other elements and compounds that are limiting factors for the growth of algae colonies are likely partially to blame for the increased prevalence of HABs in Florida and worldwide. Rising sea temperatures that may also lead to the excess growth of algae are also at least partially the fault of humans, as many of the recent temperature increases have been attributed to anthropogenic climate change. This climate change is caused by, and made more severe by, the large scale emissions of greenhouse gases, most specifically carbon dioxide, worldwide. There is speculation that the situation on the coast of Florida is so severe because it has a combination of these anthropogenic factors, with high water temperatures and high concentrations of nutrients due to runoff, as well as other, more natural conditions that encourage the growth of algae, including specific salinity levels and light saturation (Wei-Haas). Some have suggested that HABs that occur globally, including the ones on the Florida coast, are also exacerbated by the presence of dust that is African in origin and therefore contains high iron levels (J.R.), but this theory has largely been disproven. Another tie that HABs have to climate change has been noted more recently, as scientists have begun to notice that HABs are more likely to occur following the occurrence of a hurricane (Perkins). Climate change is expected by the scientific community to result in more severe weather events, as well as irregular precipitation globally. The increased number of severe

hurricanes that have occurred over the past decade are suspected to be exacerbated by the changing climate that has come as an effect of large greenhouse gas emissions, and the very presence of these hurricanes may lead to more frequent HABs. The increased number and severity of HABs off of the Florida coast therefore may be an externality of both the large scale use of fertilizers in industrial farming practices and of the historically high emission of greenhouse gases such as carbon dioxide in industrialized parts of the world. The Structural Qualities of Harmful Algae Blooms As it is an issue that directly involves the ocean and coastlines, HABs, if examined as a direct result of fertilizer runoff, are a classic example of a common pool resource problem. More specifically, the health of the oceans and beaches is subtractible, as each act of allowing excess fertilizer to find its way into the ocean makes the ocean as an ecosystem less and less healthy. However, as is typical of common pool resource problems, there is no good way to prevent people from allowing fertilizer runoff into the oceans; they are not excludable. The same can be said for HABs if one views the main cause as rising ocean temperatures that allow for faster growth of algal colonies. The release of carbon dioxide and other greenhouse gases, which eventually lead to the warming of the oceans through climate change, is subtractible in that each quantity of greenhouse gas that is released exacerbates climate change more on a global scale. There are some laws that have been put into place both in the United States and internationally that attempt to limit the release of greenhouse gases that result from industrial processes, including the Clean Air Act that, in part requires the use of technologies meant to reduce the amount of pollution caused by coal burning power plants (International Energy Agency).While these regulations have worked to reduce local air pollution throughout the United States, they have not yet proved effective in preventing the release of large amounts of greenhouse gases that exacerbate the warming of the oceans. Moreover, larger scale, enforceable regulations on greenhouse gas emissions that would likely have to occur on the international level due to the global nature of climate change are unlikely to be agreed upon with the current structure of international politics.

Like most commons issues that stem from oceanic pollution, the sudden increase in number and severity of HABs is particularly difficult to solve because it is a common pool resource problem with directionality. The industries, companies and people who release the greenhouse gases, or excess fertilizers, that allow HABs to flourish are not necessarily in the same country, or even continent, as the beaches that are ultimately impacted by the algal blooms. This makes addressing the issue of HABs on the Florida coast even harder to do, as it may require some sort of global agreement to accomplish any sort of discernable change in their severity and prevalence. This directionality is an example of a mismatch of location that makes the issue of HABs additionally difficult to solve. As it is unknown what exactly is the cause of HABs generally, let alone what event catalyzes a specific HAB such as the one currently plaguing the coast of Florida, it is unclear what precise issues of time are associated with this environmental problem. Going off of the theory that the HABs are exacerbated in part by climate change, however, gives more concrete evidence for how time delays complicate the problem of HABs further. As the oceans are carbon sinks, it is unknown exactly how quickly human emissions of greenhouse gases influence oceanic temperatures, but there is certainly a delay, as the large amounts of warming that has been observed over the past twenty years is likely associated with greenhouse gases released decades prior to that time period (Levitus et al.). Anthropogenically caused HABs are a prime example of a collective action problem in that having viable, healthy coastal ecosystems, particularly in areas like Florida that rely so heavily on tourism to boost their economies, is in all residentsâ&#x20AC;&#x2122; best interest. However, getting even Floridians themselves motivated to work to start solving the issues of HABs is extremely difficult; even current governor Rick Scott is an avid climate change denier (Railey). Additionally, current research does not support the idea that it is the actions of the local Floridians that are directly causing the extreme HABs, so even changes in local behavior are unlikely to mitigate the issue. As is the case with many environmental issues fueled by climate change, the solutions are viewed by many to simply be too costly to be worth the effort.

Social Issues and HABs Looking specifically at the issue of HABs on the Florida coast, several of the social issues that typically impact environmental problems that stem from oceanic pollution are not applicable. For instance, while it is true internationally that communities that experience poverty are often the most impacted by environmental issues, the Florida coast is generally an extremely affluent area, as the property values are very high because of heightened amounts of tourism there. Because of the affluence in these areas, the persistent HABs in Florida are therefore not an issue of environmental justice. In the current economy however, the use of production techniques that produce large amounts of greenhouse gases, which do further exacerbate ocean warming, and therefore HABs, is less expensive than more sustainable technologies. In this case, one needs to be either extremely altruistic, or have the wealth to spare to implement production technologies that would not further the creation of HABs. Because the point source of pollution (either of greenhouse gases into the atmosphere or of fertilizers into the ocean) is typically so disparate from the coastlines impacted by HABs, democracy as a political system can be ineffective in addressing HABs, specifically because different US states have different regulations surrounding pollution levels that are permitted. Additionally, the amount of influence that the industrial agricultural industry has on the US government in terms of lobbying power makes it even more difficult for the runoff of fertilizers into oceans to be prevented. Corruption in the United States Department of Agriculture is evident to this day, with top officials in the government agency having worked previously with pesticide lobbyist groups (Ivory & Faturechi). Similar connections with the fertilizer lobbyist groups are therefore not implausible. This corruption of government through the lobbying of specific industries further complicates the problem of HABs. The creation and maintenance of commodity chains and international consumption of products under globalism further encourages the existence of HABs. The US exports agricultural crops, such as soybeans and corn, in extremely high amounts (USDA Foreign Agricultural Service), and therefore the pressure on the agricultural industry to use potent, excessive fertilizers that allow them to maximize their yield, is immense. As it is possible that the cause of

a specific HAB could have originated in another country, the push for cheaper, less sustainable production methods internationally as a result of globalism also increases the amount of greenhouse gases that are released and warms the oceans even further. Uncertainty and Other Complicating Factors As has been described previously, the exact causes of HABs are uncertain, and as such it is difficult to regulate the potential causes of this environmental issue. The effects that HABs have on both marine life and human health however, have and continue to be extensively studied, so there is little question that HABs are detrimental to both the health of life on the Florida coast, as well as Florida’s economy. If left unaddressed, HABs pose a great risk to Florida’s coastal human communities, the ecosystems there, and the state’s fishing industry. However, because climate change is one of the probable causes of more extreme HABs, and the majority of the dangers that climate change poses are to future generations, there is a tendency for people to view the risk of climate change as less extreme; therefore, people are less likely to deal with one of the causes of HABs. Additionally, the issue of climate change is heavily politicized, as many conservative politicians, including Florida’s current governor, Rick Scott, see attempts to create a more sustainable country as detrimental to the US economy. The runoff of fertilizers from industrial agricultural practices too is heavily politicized, with again, the majority of conservative politicians, arguing that placing environmentally conscious regulations on the agricultural industry, will inhibit economic growth. The fact that HABs are likely catalyzed partially by rising ocean temperatures means that nonlinear effects are at play in this environmental issue. As greenhouse gas concentrations grow higher and higher in the atmosphere, the ocean’s capacity to store carbon diminishes, and eventually, its temperature will begin to rise exponentially instead of at the fairly slow pace that has been measured thus far because the carbon will have to be in the atmosphere instead of stored in the ocean. This means that, as severe a problem as HABs are now on the Florida coast, this is likely the easiest that they will ever be to address.

Pre-Existing Regulations and Attempts at Solutions In a historic first, the late summer of 2018 saw the state of Florida declare a state of emergency due entirely to the persistent, severe, HABs off of impacting its coastline. Many of the actions that have already been taken by the state of Florida in response to the severe impacts of HABs have more to do with mitigating the current effects of the HABs than actually looking back at their source in an attempt to prevent them in the future. Because the mass fish kills and the presence of large amounts of algae in the water can cause severe human health issues, it is not surprising that the state’s first priority has been to immediately cease any activities that exacerbate these issues. For the fishing industry, the state of Florida has provided $1.2 million in funding for hatcheries that are not on the coast, and presumably will be able to provide fish stock that are not impacted by the HABs while simultaneously doing research on those populations of fish that are most impacted (Staff, “Gov. Scott: DEP to Provide $3 Million for Red Tide…”). This is an example of government subsidizing a specific industry that would otherwise be unprofitable in the present environmental climate. Other fish based initiatives that have been taken by the state seek more broadly to expand the amount of information that is known about HABs and their causes; over $2.2 million has been given to the Mote Marine Laboratory to further their research on to a type of red clay that has the potential to stop these HABs much more quickly than they would naturally take to die. The research on the effectiveness of this clay is not conclusive, but it does mark the first promising, geoengineered, solution to the issue of HABs that the state of Florida has invested in up until this point. The Mote Marine Laboratory, along with dozens of other marine biology centers across the state, have also received state subsidies to help counteract the increased cost of rescuing and protecting wildlife that has been made ill by the HABs (Staff, “Gov. Scott: FWC Launches Innovative Partnership…”). Florida is home to a number of unique animal species, so many organizations are prioritizing the health of threatened animals species, most notably, the manatee, in their efforts to protect wildlife from being impacted by the mass die-offs exacerbated by HABs.

Most of the efforts to protect human health from the impacts of Florida’s HABs have come in the form of large, information campaigns that are meant to raise public awareness of the issue and promote safer behaviors in relation to HABs. For instance, some Florida counties’ departments of health have begun efforts such as the posting of signs on all of their beaches, warning residents and tourists of the presence of red tide when it is most extreme, the creation of websites with interactive maps showing beaches that people should avoid, and the provision of updated, accurate information to local media sources that will allow the public to stay informed about the issue (Staff, “Gov. Scott: DEP to Provide $3 Million for Red Tide…”). These information campaigns operate on the precautionary principle, and perhaps play into peoples’ fears surrounding the unknown dangers of HABs in order to prevent potentially catastrophic health issues. They also work in tandem with the state’s subsidizing of research to attempt to better understand what precisely is causing this uptick in HAB frequency and severity. Hazardous Algae Blooms and Coase’s Theorem In order to reach a Coasian solution to Florida’s HABs, perfect information, low transaction costs, and clearly defined property rights. Unfortunately, in its present state, the issue of HABs achieves none of these criteria. The criterium that is the most lacking in the issue of HABs on the Florida coasts is that need for perfect information. As previously discussed, very little information about the reasons as to why HABs are becoming more and more of an issue are unclear, and it is even unknown precisely what catalyzes naturally occurring HABs. The research that has recently been subsidized by the Florida state government (and to a lesser extent, the US Senate) is an attempt to try to rectify this lack of information. However, it is not simply government funded research that needs to be done to determine the specific causes of HABs. Because the American government has an economic interest in supporting the agricultural industry in the United States, there is a real chance that even if runoff from industrial agricultural practices that use large amounts of fertilizers are partially to blame, the government will be hesitant to do anything to limit this runoff for fear of limiting the productivity of the agricultural industry. If warming oceans as a result of climate change is also determined to be one of the causes of more extreme

HABs, perfect information will also be difficult to gather, as climatologists are having to work to create models of the future with less room for error. Federal and international subsidies could allow this research to progress more quickly. Further information from an impartial source will also need to be gathered on the impacts to human and wildlife health that HABs can cause. Again, this research will ideally be conducted by a non-government entity if the agricultural industry ends up being involved in this issue. As HABs are not exclusive to the Florida coast, international cooperation in scientific research could also be extremely useful in increasing what is known about HABs, their causes, and their effects. Even once the practices or industries that are responsible for catalyzing more extreme HABs are identified, the issue of attempting to reach a low transaction cost when it comes to reaching a Coasian solution is still relatively complex. As it is likely that multiple practices are complicit in exacerbating HABs, representatives from each industry would have to be selected to participate in negotiations. In the event that industries could succeed in choosing a single representative, this would likely still be a large number of people, each with their own motivations, which would make negotiating that much more difficult. There is also the issue of how to select a single representative for all of Florida’s residents who are not involved in industries impacted by HABs but still have their health put at risk daily by the algal blooms. The state governor could be chosen for this purpose, and this solution would take care of the issue of how to select a single representative for the state. However, as Coasian solutions are not supposed to involve the government, sending the governor could negate any solution reached from being considered Coasian. Again, if climate change is determined to be one of the main causes of HABs on Florida’s coast, there will likely have to be an international discussion of how to assign responsibility for the changing climate, a topic that historically has caused tensions to run high. With more, high quality information and research however, these negotiations might run a bit more smoothly. Defined property rights, like the other two conditions needed to achieve a Coasian solution, are not present in the issue of HABs off of the Florida coast. International regulations dictate that the waters up to 12 nautical miles from a country’s coast fall under the jurisdiction of that nation (United Nations), but apart from that the open seas are considered international

territory. In order to implement a Coasian solution to this issue, these international regulations would either have to be changed to establish some sort of right or restriction on dumping into the oceans, or international agreement would have to be reached at the level of the UN or higher. Climate changeâ&#x20AC;&#x2122;s role further complicates the issue, as the emission of greenhouse gases does not just impact the atmosphere over where the emissions occurred. As such, the implementation of clear property rights would require the negotiation and international agreement on who exactly is responsible for the earthâ&#x20AC;&#x2122;s atmospheric conditions. HABs and the Environmental Kuznets Curve Like with Coasian solutions, Floridaâ&#x20AC;&#x2122;s HABs are not a good candidate for the Environmental Kuznets Curve. EKCs work best for pollutants that are obvious, work locally, and have a visible impact soon after they are emitted. The issue of HABs has the potential to be global in scale, and thus it is difficult for those who release either the greenhouse gases that cause ocean warming or those whose agricultural practices lead to runoff of nutrients into the oceans to see the effects of their pollution. The inability for polluters to locally see the impacts of their emissions tends to lead to high discount rates in environmental issues. Additionally, there is a large and currently unknown time delay between the emission of greenhouse gases and the warming of the oceans, which also increases discount rates, as people view the issue as less likely to impact them personally. EKCs fundamentally work because there is demand from consumers for more sustainable practices that have fewer negative effects on the environment. Therefore, to work on a global scale, it will have to become more competitive globally for companies to use sustainable technologies. For this to happen, it will likely necessitate a rise in average global income that would probably be the result of a reallocation of global resources, which is extremely unlikely under current international standards. An EKC might be more likely for this issue if the main cause is the runoff of fertilizers from industrial agricultural practices, especially if the bulk of this runoff comes from US practices. The people of Florida specifically, if they have enough disposable income to do so, might end up changing where their food is sourced to avoid companies that release large amounts of fertilizers into the oceans. People who own property on the Florida coast tend to be

of higher socioeconomic status, which makes this outcome more likely, as they are already further along the x-axis of the EKC. Solutions to Floridaâ&#x20AC;&#x2122;s HABs and Implications Thereof The implementation of a fee placed upon foods and other crops whose growth involves the use of fertilizers that runoff to the ocean and exacerbate HABs is one potential solution to Floridaâ&#x20AC;&#x2122;s current problem. This fee could help to place a market price on the externalities of fertilizer use that cause HABs in places like Florida, and the profits from such fees could then be used in clean up efforts for beaches that have been impacted by the algal blooms. This program would incentivize both changes in industrial practices that would slow down fertilizer use and changes in consumer behavior away from the more expensive products that use excessive fertilizers in their production. Additionally, it allows companies to make the judgement call for themselves as to if the continued use of excess fertilizers is worth it. However, it is this flexibility that ultimately makes this potential solution likely to fail in preventing HABs off of the Florida coast. Because fertilizers are ultimately so good at exponentially increasing crop yield, most industries will likely choose to accept the cost of the fee rather than change their behaviors. Additionally, the funds that would go the beach cleanup still would ultimately fail to prevent human and wildlife health issues causes by the HABs. This fee may also disproportionately impact lower income Americans who have no choice but to purchase the lowest priced item available; if the prices of those products rise even further, these Americans will be forced to purchase even less of the products than they already are able to. An information program about the exact causes and impacts of HABs is also a promising solution to this environmental issue. The state of Florida has already used information campaigns in their mitigation efforts, but if applied to the emission of greenhouse gases and the use of excess fertilizers, it has the potential to also work to prevent future HABs on the Florida coast. The implementation of labels on products whose industries are known to exacerbate HABs, either through the release of greenhouse gases or through fertilizer use, could work to change consumer behavior, and ultimately increase the chances that an EKC could apply to this issue. While this campaign might be impactful in changing behavior, and ultimately, shaping the

demand for environmentally hazardous products in the US market, the cost of information is extremely high in this scenario, as very little is known now about the exact causes of HABs. This would necessitate not only extensive research to determine which industries to target, but also to counter arguments of uncertainty from the industries that are targeted. Additionally, this would likely only impact consumption behaviors of consumers with high enough incomes to consider environmental implications when choosing which products to purchase, so it may not change the behaviors of many American consumers who do not have that luxury. This information campaign would likely only be implemented in the United States, so it also would not impact international consumer behaviors. One way to change industry behavior that might be impactful in reducing the frequency and severity of HABs off of the Florida coast is the implementation of market barrier reductions in the form of liability rules. If industries responsible for large amounts of greenhouse gas production or excessive fertilizer runoff to the oceans in the US were required by law to pay for mitigation and cleanup of coastline that has been impacted by HABs, this cost might be enough to catalyze a change in industry practices. Additionally, the increased costs to these companies might result in the raising of product prices to account for these mitigation costs, which also has the potential to change consumer behavior surrounding which products it is possible for them to purchase. This internalization of the cost of externalities may lead to reduced emissions of harmful substances that exacerbate HABs. While there are limitations to this solution, as it could realistically only be used in the United States, it could help to prevent the frequency of Floridaâ&#x20AC;&#x2122;s HABs and restore the coastline health of the state. If industries were required to pay for clean up efforts that are currently the responsibility of the Florida state government, the state government could then allocate those funds to any of the many other environmental concerns plaguing the state. The beginning of a national cap and trade program for both carbon emissions and the use of excessive fertilizers is also promising in addressing HABs on the Florida coastline. While research would be needed to set the cap levels, if it was agreed that the maximum allotted emissions would continuously lower for a set period of time, this solution would incentivize movements towards more sustainable technologies. Additionally, this program would allow

individual companies to decide what economically worked the best for them, while also providing economic incentives for emitting fewer substances that exacerbate Floridaâ&#x20AC;&#x2122;s HABs. If the plan for the lowering of the cap on emissions for each substance was made available to the companies impacted, they would also have the ability to plan for the future in terms of phasing out various technologies. Outside of helping to reduce the number and severity of HABs, a cap and trade system on carbon emissions would also have the positive externality of reducing other negative results of climate change. The United States is also an extremely wealthy nation, so monitoring and enforcement of these standards and trading practices domestically would be possible to ensure that agreements were enforced. Ultimate Prescription of Solutions To fully respond to the current issue of frequent and severe HABs in Florida, a combination of cap and trade policies on carbon and fertilizer emissions and liability rules on those companies that do the bulk of the emitting is necessary to change industry and consumer practices. A similar approach could be taken to prevent a similar problem from occurring under similar circumstances, although in that case, early information campaigns that specifically address the human health impacts of HABs might also be appropriate to sway consumer behaviors, as people are particularly motivated to take action when they know that an environmental issue could harm them physically and directly.

Works Cited Bruckner, M. (n.d.). Red Tide. Retrieved October 30, 2018, from https://serc.carleton.edu/microbelife/topics/redtide/index.html International Energy Agency. (2009). Clean Coal Technologies - Accelerating Commercial and Policy Drivers for Deployment. OECD. https://doi.org/10.1787/9789264077164-en Ivory, D., & Faturechi, R. (2017, November 13). An Open Door for Pesticide Lobbyists at the U.S.D.A. The New York Times. Retrieved from https://www.nytimes.com/2017/11/13/business/trump-regulations-usda-lobbyists.html J.R. (2001, September 29). Rain of foreign dust fuels red tides. Science News, 160(13), 207. Lee, C. (2008). Red tide. In M. Luck (Ed.), The encyclopedia of tourism and recreation in marine environments. Oxford, UK: CABI. Retrieved from https://ezproxy.wellesley.edu/login?url=https://search.credoreference.com/content/entry/c abitrme/red_tide/0?institutionId=774 Lee, J. H. W., & Bo Qu. (2004). Hydrodynamic Tracking of the Massive Spring 1998 Red Tide in Hong Kong. Journal of Environmental Engineering, 130(5), 535â&#x20AC;&#x201C;550. https://doi.org/10.1061/(ASCE)0733-9372(2004)130:5 Levitus, S., Antonov, J. I., Boyer, T. P., Locarnini, R. A., Garcia, H. E., & Mishonov, A. V. (2009). Global ocean heat content 1955-2008 in light of recently revealed instrumentation problems: GLOBAL OCEAN HEAT CONTENT. Geophysical Research Letters, 36(7), n/a-n/a. https://doi.org/10.1029/2008GL037155 Mlot, C. (1997, September 27). The rise in toxic tides: whatâ&#x20AC;&#x2122;s behind the ocean blooms? Science News, 152(13), 202. Perkins, S. (2006, June 10). Toxic tides: another reason to worry about hurricanes. Science News, 169(23), 358. Railey, Kimberly. "Scott Criticized Over Climate Change Stance." Hotline.National Journal's Daily Briefing on Politics (Online), Sep 18, 2017. ProQuest,

https://search-proquest-com.ezproxy.wellesley.edu/docview/1939979852?accountid=149 53. Staff. (2018, September 19). Gov. Scott: FWC Launches Innovative Partnership with World-Renowned Scientists to Combat Red Tide. Retrieved November 21, 2018, from https://www.flgov.com/2018/09/19/gov-scott-fwc-launches-innovative-partnership-withworld-renowned-scientists-to-combat-red-tide/ --- (2018, October 4). Gov. Scott: DEP to Provide $3 Million for Red Tide on Florida’s East Coast. Retrieved November 21, 2018, from https://www.flgov.com/2018/10/04/gov-scott-dep-to-provide-3-million-for-red-tide-on-fl oridas-east-coast/ United Nations. (2016, February 11). Oceans and the Law of the Sea. Retrieved November 21, 2018, from http://www.un.org/en/sections/issues-depth/oceans-and-law-sea/ USDA Foreign Agricultural Service. (n.d.). “Top U.S. Agricultural Exports in 2017” . Retrieved November 3, 2018, from https://www.fas.usda.gov/data/top-us-agricultural-exports-2017 US Department of Commerce, N. O. A. A. (n.d.). NOAA Forecast for Red Tide in Florida. Retrieved October 30, 2018, from https://oceanservice.noaa.gov/news/redtide-florida/ Wei-Haas, M. (2018, August 8). Red Tide Is Devastating Florida’s Sea Life. Are Humans to Blame? Retrieved October 30, 2018, from https://www.nationalgeographic.com/environment/2018/08/news-longest-red-tide-wildlif e-deaths-marine-life-toxins/

The Flaws of Market-based Freedom: An Argument for Anti-discrimination Legislation Helen Redmond ’21 In Capitalism and Freedom, Friedman argues that market-based solutions are better than governments at reducing discrimination (93-101). According to Friedman, the impersonality of the market discourages corporations from discriminating. The private sector values profit above all else. Therefore, companies are incentivized to hire the most qualified candidates, regardless of the candidates’ immutable characteristics (95). Moreover, consumers who oppose discrimination may refuse to do business with companies that do not share their values. An employer who chooses to discriminate will face economic sanctions caused by the loss of qualified job candidates and the alienation of its customer base. Thus, I argue that Friedman believes the market will reduce discrimination without impeding upon individuals’ political and economic freedom (15-26). Michael Schur’s television program The Good Place provides an alternate perspective. Schur describes the risk that uninformed consumers face as they try to avoid creating negative “unintended consequences (The Good Place 17:44-17:51).” Everyday people do not have the time or resources to become informed consumers (Ibid. 6:02-6:04). Thus, they cannot act upon their values in the market. Contrary to Friedman, I argue that the impersonality of the market undermines its ability to reduce discrimination and to protect individual freedom. Additionally, I use The Good Place and the example of former Fox News CEO Roger Ailes’ sexual harassment case to argue that governments’ anti-discrimination interventions protect individuals’ freedom by allowing them to make informed and uncoerced decisions (Koblin). In Capitalism and Freedom, Friedman argues that the detached nature of the capitalist market raises costs for individuals who choose to discriminate (93-94) .Acting under the assumption that racially-influenced hiring practices are individual or community-wide “tastes”, similarly to how one may have a taste for a specific type of music, Friedman asserts that an employer’s racial “tastes” will increase their business costs (94). Because capitalism is based on the attainment of profit, “there is an economic incentive in a free market to separate economic efficiency from other characteristics of the individual.” If the most qualified job candidate is a

person of color, an employer who prefers white employees will select a subpar candidate and lose a portion of their profit as a result. If there is sufficient competition between businesses, a companyâ&#x20AC;&#x2122;s racial preferences may drive it out of business. Therefore, the impersonality of the capitalist market, which values economic profit above the personal characteristics of employees, will inadvertently punish a business owner who acts upon their racial biases (94). As actors in the market, individuals can promote the interests of minorities. Just as racially-biased customers may be unwilling to shop at a store with employees of color, customers who oppose racial discrimination may boycott a company that does not share their values. If the boycott poses enough of an economic threat, the company will either change its policies or run out of business (95). Moreover, minority groups can act within the market to promote their interests. For example, companies can implement affirmative action policies, which could be legally considered a form of discrimination despite its positive intentions (97). Consequently, individuals and communities can use their purchasing power to support minorities and to counter hiring discrimination. According to Friedman, public anti-discrimination intervention in the market limits the freedom of individuals. Friedman identifies two forms of harm, positive harm and negative harm. Positive harm occurs when an individual is physically or legally coerced into engaging in a transaction (94,96).On the other hand, negative harm occurs when individuals cannot agree upon the terms of business and thus do not engage in business with each other, resulting in an economic loss and harm for the participants. Employers who reject candidates on the basis of their race, gender, religion, sexual orientation, or other immutable characteristics negatively harm these candidates. However, in order to prevent these acts of negative harm, the government would have to engage in positive harm against employers. Because positive harm involves active coercion, Friedman believes that it is the worst form of harm. Therefore, it is better for individuals to experience negative harm from discrimination than for employers to experience positive harm from government coercion (Ibid.). Moreover, anti-discrimination legislation can negatively harm small businesses and create an unfree market. Communities that have â&#x20AC;&#x153;tastesâ&#x20AC;? for a specific racial group may punish employers who hire people of color (Ibid.). If anti-discrimination laws force employers to hire

people of color, the community may refuse to do business with that employer (Ibid). Because larger, wealthier companies can afford the fines that come with breaking anti-discrimination laws, they will continue to retain customers and may drive smaller companies out of business. This will negatively harm small businesses and allow a monopoly to form (Ibid). According to Friedman, monopolies pose a significant risk to “a free society” by harming “voluntary exchange through a reduction in the alternatives available to individuals (Friedman 102).” The definition of “free society” is, of course, relative (Ibid). But if we are to accept Friedman’s definition of freedom as “the absence of coercion of a man by his fellow men”, then both employers and communities are harmed by anti-discrimination legislation (Ibid). Employers are negatively harmed and lose their freedom when they are forced to act against their racial “‘tastes’”; communities lose their freedom when monopolies limit their economic choices (Ibid). Thus, Friedman argues that anti-discrimination legislation reduces individuals’ freedom and harms the economic status of both businesses and consumers (Ibid). Moreover, Friedman argues that government intervention sets a political precedent that could lead to state-mandated discrimination. By outlawing private discrimination, the government imposes its values upon individuals and the market (Ibid). Although the government arguably opposes racial and gender-based discrimination in the present, this has not always been the case. If anti-discrimination values can be imposed upon individuals, what would stop a racially biased legislature from forcing businesses to discriminate as they once did during the Jim Crow era? While anti-discrimination legislation may be well-intentioned, it sets a precedent of the government imposing its values on the market, which could allow for state-mandated discrimination in the future (Friedman 96). Underlying Friedman’s argument against anti-discrimination legislation is the belief that the market will nearly always fix itself. Except for the case of corporate monopolies (Friedman 102, 31, 36), government intervention harms the economy and limits the freedom of individuals (10-12). The capitalist market, of course, is not immune to inequality. But Friedman does not see economic inequality as a sign of the market’s failure (90). Rather, economic inequality is a sign that the market continues to value competition (80-81). This competition is the key to innovation, which allows the market to continually thrive and the wellbeing of the U.S. public to improve

(Friedman 12). While some may experience economic loss because they cannot withstand competition, the market as a whole will fix itself with minimal government intervention. Individuals who cannot use their skills or entrepreneurialism to overcome the obstacle of personal discrimination may suffer in the market, but this does not represent a flaw within the market itself. Friedman argues that the cost of personal and economic freedom is far too high for the government to intervene (15-26, 96). This argument ignores the fundamental realities of the economic market. Although market-driven solutions for discrimination do not use physical or legal coercion, corporations purposefully hide reports of discrimination from consumers (Friedman 20). Without the freedom of information, individuals cannot abide by their values in the market. Michael Schur’s television show The Good Place explains this argument well. In The Good Place, employees in the afterlife use a logical point system to assign a moral value to every action a human performs in their lifetime (The Good Place, "The Book of Dougs."). However, the nature of the unregulated and impersonal market causes well-intended actions to be given negative point values. For instance, before the existence of national corporations or a global market, the action of giving a family member roses would earn someone 145 points. However, performing the same action in the present day would cause someone to lose 4 points. This is because by ordering flowers from a corporation, the individual’s “money went to a billionaire racist CEO who sends his female employees pictures of his genitals.” In both cases, the action performed was well-intended. But because consumers did not know that sexual harassment was occurring within this company, they unknowingly contributed to sexual discrimination. The Good Place raises and later refutes Friedman’s argument that consumers who wish to enforce their values are personally responsible for researching the products that they purchase (Friedman 96). In an ideal world, this would be true. But as The Good Place points out, low-income individuals who work three jobs do not have time to research every purchase they make (The Good Place, “Chidi Sees the Time-Knife”). Moreover, even if they wanted to, information about discrimination practices is often unavailable. Companies have no economic incentive to admit that they participate in discrimination. And in a market-based system, companies would not be legally required to disclose instances of discrimination. For instance, if

the former Fox News anchor Gretchen Carlson had not filed a sexual harassment lawsuit against former Fox News Chief Executive Officer Roger Ailes, the public may have never learned that Ailes was engaging in sexual discrimination (Koblin, Steel, and Rutenberg). Carlson could not have filed this lawsuit if sexual harassment and discrimination was legal. Without the knowledge that discrimination occurs, individuals will have no way of fighting discrimination. As a result, they will be unable to act upon their personal “tastes”, as Friedman suggests they could (94). Schur’s argument raises the question of how we should define freedom. Because physical or legal coercion is not involved, Friedman would not consider corporations’ suppression of information to constitute a violation of freedom (20-21). But just as physical and legal coercion forces an individual to make a choice that they disagree with, so too does a lack of freedom of information (Friedman 20). In Friedman’s ideal economy, individuals who do not and cannot know what companies discriminate are forced to support discrimination in order to survive in the modern, market-based economy. Thus, the impersonality of the market is not a strength, but rather its greatest weakness. Finally, Friedman is correct that a government which outlaws discrimination establishes the precedent for legally forcing companies to practice discrimination. However, in the event that this does occur, the public will be well-informed of it. Although Jim Crow policies mandating segregation were atrocities, the public was well aware that they existed (Friedman 96). As a result, individuals who opposed segregation could fight against it, precisely because they knew of it. People cannot fight against a problem when they do not know that it exists. Because the government has an obligation to be more transparent about its laws, whereas corporations can conceal information from consumers, the government is better equipped to fight discrimination. Friedman assumes that government anti-discrimination intervention is ineffective and limits the freedom of individuals (93-101). Yet The Good Place and recent cases of sexual discrimination reveal that government action reduces discrimination and preserves the freedom of individuals that corporations seek to infringe upon (The Good Place). The market’s impersonality places profit above freedom and morality. It is through government regulation that society’s collective values can be protected.

Works Cited Friedman, Milton. Capitalism and Freedom. University of Chicago Press, 1962. PDF. The Good Place. "Chidi Sees the Time-Knife." Episode 11, season 3. NBC. January 17, 2019. Created by Michael Schur. Performed by Kristen Bell, Ted Danson, William Harper, Jameela Jamil, Manny Jacinto, and D'Arcy Carden. "The Book of Dougs." Episode 10, season 3. NBC. January 10, 2019. Created by Michael Schur. Performed by Kristen Bell, Ted Danson, William Harper, Jameela Jamil, Manny Jacinto, and D'Arcy Carden. Koblin, John, Emily Steel, and Jim Rutenberg. "Roger Ailes Leaves Fox News, and Rupert Murdoch Steps In." The New York Times, July 21, 2016. Accessed March 20, 2019. https://www.nytimes.com/2016/07/22/business/media/roger-ailes-fox-news.html?module =inline.

Making of a “Miracle”: The Passage of the Every Student Succeeds Act Kate Van Hecke ’22 The Every Student Succeeds Act (ESSA) is a piece of legislation widely known in Washington DC as being a “miracle”, as it was a major piece of education reform legislation that received widespread bipartisan support, something rarely heard of in an increasingly polarized political world. The ESSA, as evidenced by its nature, was a cooperative federalist and intergovernmentalist bill, which helped gain it bipartisan support, and ultimately allowed for its passage into law. The passage of the ESSA represents a shift from a strictly delineated federally-run student evaluation system to one that more effectively incorporates the powers of the states under federal purview. There is still federal oversight, however, the states are largely in charge of their own education regulation, aside from annual federally mandated testing. Essentially, the Every Student Succeeds Act used cooperative federalism to appease both major American political parties. Democrats and Republicans in an “increasingly partisan and nationalized” (Jacobson 1) congress worked together to craft a bill that would appease both parties, ultimately achieving a “balance between federalism and accountability” (Layton 1). The United States government has grown increasingly partisan, particularly in congress. This steep division between the two major American political parties often prevents essential legislation from being passed. The success of the ESSA was referred to as a miracle, with President Obama saying: “This is a Christmas miracle...A bipartisan bill signing right here!” (Layton 3). This unprecedented bipartisan support for the Every Student Succeeds Act is partially due to cooperative federalism, and how the bill divides responsibilities and duties between the state and the federal government. Cooperative federalism is a form of federal government in which state and national governments work together to solve problems, rather than a federalist system in which federal and state powers are clearly designated and separated (Kollman index). The ESSA is an example of cooperative federalism as it incorporates both state and federal regulations. The state is in charge of policy, but there is federally mandated testing: “[the ESSA] prevents the federal government from requiring states to evaluate teachers and

principals and adopt specific academic standards.â&#x20AC;? (Layton 1). Cooperative federalism appeased demands on and questions about educational regulation, making the bill less partisan and easier to pass. Likewise, intergovernmentalism played a key part in the bipartisan success of the ESSA. Intergovernmentalism is defined here as a functional system of government in which federal, state, and local entities are involved in the same issue of policy, which in the case of the ESSA is education. Intergovernmentalism is similar in nature to cooperative federalism, but cooperative federalism does not address the relevance of local government in education policy, especially implementation. The ESSA is, by its very nature, an intergovernmental piece of legislation. It specifically delineates nearly all policy issues to the states, who in their turn are able to focus on local issues that is nearly impossible for federally-mandated policy to address. This focus on local decision-making is a focus presumably popular with members of congress, who act as representatives of their constituents and whose job it is to represent their constituency and its needs. The No Child Left Behind Act had removed all semblance of local control from education policy, which left schools vulnerable to a myriad of issues that came with aggressive federal oversight- namely, over-testing: â&#x20AC;&#x153;...this new law will result in fewer and better tests because states and classroom teachers will be deciding what to do about the results of those tests.â&#x20AC;? (Layton 2). The intergovernmentalist nature of the bill allowed for both Republicans and Democrats to support it, which was key in its passage. Ultimately, the ESSA received such widespread support as it was a bill that was both cooperatively federalist and intergovernmentalist in nature. The bill did not lean too heavily on federal oversight, nor did it completely remove education policy from federal purview. It returned much of the power over education policy to states and school districts, a move that proved popular across the aisle- both Republicans and Democrats showed strong support for the bill, which was easily passed into law and signed by President Obama, who heralded it as a Washington miracle.

Works Cited Jacobson, Gary C. "Obama and Nationalized Electoral Politics in the 2014 Midterm." Political Science Quarterly, vol. 130, no. 1, 2015, pp. 1-25. Layton, Lyndsey. “The Fight over K-12 Education Appears Headed Back to the States.” The Washington Post, WP Company, 20 Nov. 2015, www.washingtonpost.com/local/education/the-fight-over-k-12-education-moves-from-co ngress-to-the-states/2015/11/20/74b877d4-8fc4-11e5-baf4-bdf37355da0c_story.html. ---. “Senate Overwhelmingly Passes New National Education Legislation.” The Washington Post, WP Company, 9 Dec. 2015, www.washingtonpost.com/local/education/senate-overwhelmingly-passes-new-national-e ducation-legislation/2015/12/09/be1b1f94-9d2a-11e5-a3c5-c77f2cc5a43c_story.html. ---. “Obama Signs New K-12 Education Law That Ends No Child Left Behind.” The Washington Post, WP Company, 10 Dec. 2015, www.washingtonpost.com/local/education/obama-signs-new-k-12-education-law-that-en ds-no-child-left-behind/2015/12/10/c9e58d7c-9f51-11e5-a3c5-c77f2cc5a43c_story.html.

Considering an American Legacy of Economic Inequality Kate Van Hecke ’22 Although the United States was purportedly founded on a basic principle of equality for all, this has not been the reality for much of American history, particularly in terms of economic equality. Although Sitaraman correctly acknowledges that wealth concentration in the American economy leads to populist demagogues, he is incorrect in stating that the constitution reflects the founder's desire for economic equality: the constitution institutionalized and codified slavery, one of the greatest economic injustices in American history. Sitaraman claims that the constitution reflects the founder’s desire for economic equality as the constitution, unlike Roman law or English common law, does not enshrine class inequality. While this is true, the constitution “...neither forbade slavery nor empowered congress to do so” (Dahl 71). The three fifths compromise, as well, goes so far as to give a lesser intrinsic and numerical value to enslaved peoples, the vast majority of whom were Black Americans. Despite Sitaraman’s claims that the founders were themselves largely equal in economic status (Sitaraman), no document that enshrines chattel slavery, a practice which strips enslaved peoples of livelihood and an ability to choose, can be considered in favor of economic equality. Additionally, the inclusion of enslaved people as three fifths of a person can be considered a boon to white, southern slave owners. The more slaves owned meant more representation in the newly structured federal government, and the more a slave owner’s interests were represented, the more they stood to profit off a document that the enshrined the fundamental economic inequality of slavery. Ultimately, racial inequality is a ideology entwined in the founding documents. If those same founders that declared that all men are created equal are held to a standard of economic equality found in the constitution, they fail that standard. On the basis of slavery alone, the constitution represent a document that, by means of racial suppression, ensures economic inequality among the populace. An institutionally disadvantaged group can never be equal. No matter the founder’s influence on the economic condition of the nation, the United States today experiences wealth concentration unheard of at the time of the founding (Sitaraman). As American wealth concentrates at the very top, the middle and lower classes grow

increasingly poorer, and this increased level of American wealth disparity is the breeding ground for populism. The marked separation between the wealthy and the poor is a division often exploited by populists, who use collective anger and unrest to gain support among the masses of poorer citizens. This particular branding of economic unrest also leads to a rise in populist demagogues- politicians who exploit this mass anger and frustration for their own gain. Rising American economic inequality has led to just that: politicians who, in the name of “the people” exploit genuine concerns to benefit themselves. Populist demagogues, once relatively unheard of in American politics, are now common at the state and federal levels. Unprecedented wealth concentration has led to a falling middle class, as wealth becomes increasingly polarized. The middle class is no longer an influential or relatively affluent as it once was (Sitaraman) and the people who formed a part of this American economic group are feeling the consequences of the shift towards a polarized class system. There is, therefore, a large group of Americans presumably dissatisfied with the new American wealth disparity. This combination of factors creates a breeding ground for populist demagogues to specifically target this group of Americans with exclusionary rhetoric, a strategy that works well in America today. While Sitaraman’s claims that there was relative economic equality amongst the founders themselves is true, that does not mean the constitution represented a desire for economic equality for all Americans. The constitution’s passive support for slavery represents great economic injustice and inequality. This fundamental economic inequality in America continues until today, where it appears in the form of a shrinking middle class that has led to populist demagoguery in the United States.

Works Cited Dahl, Robert A. How Democratic Is the American Constitution? Yale University Press, 2003. JSTOR, www.jstor.org/stable/j.ctt1nptxj. Sitaraman, Ganesh. “Our Constitution Wasn't Built for This.” The New York Times, The New York Times, 16 Sept. 2017, www.nytimes.com/2017/09/16/opinion/sunday/constitution-economy.html.